Case Comment: O’Brien v MoJ  UKSC 34, Opinion of Advocate General Kokott (C-393/10)
21 Monday Nov 2011
In August 2010, the Supreme Court unanimously referred the appeal of Mr O’Brien QC, a former fee-paid part-time Judge who is seeking retrospective admission to the Judicial Pension scheme, to the Court of Justice of the European Union. See the case preview here.
On the 17th November 2011, Advocate General Kokott handed down her opinion.
O’Brien and others argue that the specific exclusion of part-time judges paid a daily fee from the protection of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is incompatible with the Part-Time Workers Framework Directive (97/81/EC) (“the Framework Directive”), and that the 2000 Regulations have not properly implemented the Directive into UK law. The Directive was intended to give effect to the Framework Agreement on Part-time Work (“the Framework Agreement”).
The Supreme Court referred the following questions to the Court of Justice:
(1) Is it for national law to determine whether or not judges as a whole are workers within the meaning of the Framework Agreement, or is there a Community norm by which this matter must be determined?
(2) If judges as a whole are workers within the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?
In respect of question 1, the view of AG Kokott was that whilst it is generally for national law to determine the meaning of the term “worker”, there is a limit on a Member State’s discretion to do so. Whilst the CJEU will not interfere if a Member State defines the term “worker” very broadly, a Member State cannot be permitted to narrowly define the term “worker” so as to arbitrarily exclude a certain category of persons from the protection of the Framework Agreement and the Directive.
AG Kokott held that if Member States were allowed to arbitrarily exclude some categories of persons, this would place the effectiveness of the Framework Agreement and the Directive in jeopardy, and undermine the EU principle of effectiveness. Further, it would be incompatible with fundamental principles of EU law, namely the principles of equal treatment and non-discrimination.
Accordingly if a Member State does seek to exclude a certain category of persons from the protection of the Directive and the Framework Agreement, then it would have to establish that the nature of the employment relationship enjoyed by those who are excluded by national law was “substantially different” from those who are not excluded. Mere formalities or technicalities will not be relevant to this issue, and therefore the fact that fee-paid Recorders are nominally “office-holders” would not be sufficient. Similarly, AG Kokott dismissed the Ministry of Justice’s reliance on the independence of the judiciary, and stated that this was not an appropriate criterion to justify the exclusion of fee-paid Recorders from the scope of the Framework Agreement. She also held that the number of persons affected is not relevant to this issue.
It will be for the Supreme Court to consider whether the nature of the employment relationship between fee-paid Recorders and the Ministry of Justice is “substantially different” from the relationship between other types of judges and the Ministry of Justice.
Secondly, it will be for the Supreme Court to determine whether fee-paid Recorders are workers within the meaning of the Directive. Although the Supreme Court purported not to express a view on this issue in their judgment, Lord Walker delivering the judgment of the court did observe that judicial office “partakes of most of the characteristics of employment”.
In respect of question 2, AG Kokott held that not only does the Directive prevent Member States from discriminating between full-time and part-time workers, but it also prevents them treating one category of part-time workers less favourably than another category of part-time workers. AG Kokott observed that the introduction of distinctions between various types of part-time workers by a Member State would infringe the general prohibition on discrimination in EU Law.
AG Kokott held that it would be for the Supreme Court to decide whether fee-paid Recorders and full-time judges are comparable; and whether any difference in treatment between full-time judges and part-time judges, or between different categories of part-time judges, is objectively justified.
It is very likely that the CJEU will agree with the Advocate General. The case will then return to the Supreme Court to definitively decide the two issues referred to above. Suffice it to say that Mr O’Brien’s prospects of ultimately gaining retrospective admission to the Judicial Pension scheme are looking good. Let’s just hope that by the time all the legal wrangling is over, there is still something left in the judicial pension pot!