Given current concern about the state of the public coffers and “fat cat” public sector pensions, no doubt the Treasury is anxiously awaiting the decision of the Supreme Court as to whether Recorders (part-time judges in the Crown Court and county courts) should be granted retrospective admission to the Judicial Pension Scheme. Dermod O’Brien QC, who sat as a Crown Court Recorder for 27 years, is challenging the decision by the Ministry of Justice not to grant him a judicial pension on his retirement because he was a part-time judicial office holder paid a daily fee. A full time judicial office holder would have received a pension. A number of similar claims are currently stayed in the Employment Tribunal pending the decision of the Supreme Court.

The O’Brien case is noteworthy for other reasons. This litigation is not supported by the Bar Council (financially or otherwise), a fact which has led to some barristers withholding their voluntary Bar Council subscriptions since 2007.   Mr O’Brien QC has written about this issue here. Further, he has previously been advised by Eleanor Sharpston QC, currently Advocate General at the Court of Justice of the European Union (“CJEU”), who one might expect to know a thing or two about EU Law.

The Background

All part-time workers in the UK are protected from less favourable treatment than a comparable full-time worker under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, if that treatment is on the grounds that they are a part-time worker.  However, Regulation 17 specifically excludes holders of judicial offices who are paid a daily fee from this protection.

This does seem rather arbitrary, since it is hard to imagine any other category of office-holders who would not come within the definition of worker in the Regulations. Indeed part-time Recorders who are paid a salary and company directors are likely to be protected by the Regulations. Even police officers – still considered to be “pure office holders” in the traditional sense and not workers – are expressly deemed by the Regulations to be workers. The Labour Government never did hide its dislike of the judiciary very well.

The EU Position

Mr O’Brien argues that the exclusion of fee-paid Recorders is incompatible with the Part-Time Workers Framework Directive (97/81/EC), and that the 2000 Regulations have not properly implemented the Directive into United Kingdom law.

The Directive was intended to give effect to the Framework agreement on part-time work, which defines the scope of the agreement as “applying to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each member state”. Unfortunately this sits rather untidily with English law, which distinguishes between employees and workers. Whilst an employee is a worker, a worker is not an employee, and has neither an employment contract nor an employment relationship.

The Directive leaves Member States free to define who is a worker in accordance with national law and practice, provided that the definitions respect the content of the framework agreement.

The Courts Below

Neither the Employment Tribunal nor the Employment Appeal Tribunal were actually asked to consider this issue, and instead decided a limitation issue. However, the then President of the EAT decided the same issue in Christie v Department  for Constitutional Affairs [2007] ICR 1553, and held that the exclusion of fee-paid Recorders was wholly consistent with the discretion afforded to Member States under the Directive.  He also declined to make a reference to the CJEU on the basis that there was no real dispute as to the proper meaning of EU law and the position was acte clair.

The Court of Appeal in O’Brien ([2008] EWCA Civ 1448) adopted the reasoning in Christie, and held that it was well within the discretion afforded to a Member State under the Directive to exclude fee-paid Recorders from the definition of workers. The Court of Appeal considered the domestic legal position at the time when Regulation 17 was introduced, and held that this supported the view that Recorders would not have come within the definition of workers in the 2000 Regulations in any event.

In reaching this conclusion, the Court of Appeal appear to have given considerable weight to the former position under UK law, that statutory office-holders could not be employees, and therefore could not be workers. In more recent times, the House of Lords has held that this is a false dichotomy, and that holding an office and being an employee (or worker) are not inconsistent. Accordingly, the case-law on the employment status of judicial office holders cited by the Court of Appeal in their judgment (which dates back to 1953 and 1979), would appear to be ripe for challenge.

The Supreme Court Decision

The main issue for the Supreme Court to decide is whether the definition of worker adopted by the UK (and the specific exclusion of only fee-paid Recorders from this definition) is outside of the discretion afforded to Member States by the Directive. They will also have to consider whether fee-paid Recorders fall within the definition of workers within the Directive (and therefore the Regulations).

The question of whether an individual is a worker or not, a question which bedevils Employment Tribunals every day of the week, is essentially a question of fact. It will be interesting to see how the Supreme Court approaches this question, especially as the courts below did not in fact make any findings of fact. Any decision on this issue could have significant repercussions for UK employment law generally, as the definition of a worker in the Regulations is identical to that used in legislation such as the Employment Rights Act 1996 and the National Minimum Wage Regulations 1998.

One indication of how the Supreme Court may decide this issue, is the obiter comment of Baroness Hale, who is on the panel of judges who will hear O’Brien, in Matthews v Kent and Medway Towns Fire Authority [2006] ICR 365 (the part-time fire-fighters case) that the Parliamentary draftsman had clearly foreseen that fee-paid judicial office holders would fall within the definition of workers, and had therefore specifically sought to exclude them by regulation 17.

If the Supreme Court finds in favour of their judicial brethren, then they are likely to agree with the EAT in Christie that there is no possible way to construe Regulation 17 in order to render it compatible with the Directive.

Claire Darwin, Matrix