'Worker' – Part-time workers

O'Brien v Ministry of Justice (Council of Immigration Judges intervening): Supreme Court: 6 February 2013

The claimant was a retired barrister. In 1978, whilst still practising as a barrister, he was appointed as a recorder, sitting part-time. In 2005, he retired from sitting as a recorder. Following his retirement, he wrote to the defendant government department requesting that he be paid a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full-time judges who had been engaged on the same or similar work. The defendant informed him that he fell outside the categories of judicial office holder to whom a judicial pension was payable as the office of recorder was not a qualifying judicial office under the Judicial Pensions and Retirement Act 1993 and because there was no obligation to provide him with a pension under European law as he had been an office-holder, not a worker.

In September 2005, the claimant commenced proceedings in the employment tribunal claiming, inter alia, that he had been discriminated against because he was a part-time worker. In support of that claim, he sought to rely on Council Directive (EC) 97/81 (concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC) and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551. The claim was allowed by the tribunal, but the Employment Appeal Tribunal subsequently allowed the defendant's appeal, on the grounds that the claim had been presented out of time. The Court of Appeal allowed the claimant's appeal on the time limit issue, but directed the tribunal to dismiss the claim on the issue of substance on the basis that judges were not workers, either under regulations 1(2) or 12 of the Regulations.

The claimant appealed to the Supreme Court. By its judgment in the instant case dated 28 July 2010 (see O'Brien v Ministry of Justice [2010] IRLR 883) the Supreme Court referred to the Court of Justice of the European Union two questions concerning cl 2.1 of the Framework Agreement as annexed to the Directive. On 1 March 2012, the Court of Justice gave its responses to those questions (see O'Brien v Ministry of Justice [2012] IRLR 421). The Court of Justice held, inter alia, that EU law had to be interpreted as meaning that it was for the member states to define the concept of 'workers who had an employment contract or an employment relationship' in clause 2.1 of the Framework Agreement... and in particular, to determine whether judges fell within that concept, and that the Framework Agreement had to be interpreted as meaning that it precluded, for the purposes of access to the retirement pension scheme, national law from establishing a distinction between full-time judges and part-time judges unless such a difference was justified by objective reasons. The parties returned to the Supreme Court for further determination of the appeal.

The principal issues that fell to be determined were: (i) whether the relationship between judges and the defendant was substantially different from that between employers and persons who fell to be treated in national law as workers (the worker issue); and (ii) whether the difference in treatment of recorders was justified by objective reasons (the justification issue). In respect of the worker issue, the defendant contended, inter alia, that there was no obligation to provide the claimant with a pension under EU law as he had been a judicial office holder, not a worker. In respect of the justification issue, the defendant advanced three inter-related aims of: (i) fairness in the distribution of the State's resources that were available to fund judicial pensions (the fairness aim); (ii) the attraction of a sufficiently high number of good quality candidates to salaried judicial office (the recruitment aim); and (iii) the maintenance of the cost of judicial pensions within limits which were affordable and sustainable (the cost aim). Consideration was given to regulation 5(2) and (3) of the Regulations. The appeal would be allowed.

(1)It had been established by the European Court of Justice that it was for national law to determine whether a person in part-time work had a contract of employment or an employment relationship. A member state could not remove at will, in violation of the effectiveness of the Directive, categories of persons from protection. In particular, the sole fact that judges were treated as judicial office holders was insufficient in itself to exclude the latter from enjoying the rights provided for by the Framework Agreement (see [29] of the judgment)

Such an exclusion might be permitted if it was not to be regarded as arbitrary, only if the nature of the employment relationship was substantially different from the relationship between employers and their employees which fell within the category of 'workers' under national law (see [29] of the judgment).

In the instant case, in respect of the worker issue, recorders were not self-employed persons when working as a recorder. They were in an employment relationship within the meaning of clause 2.1 of the Framework Agreement and they had to be treated as 'workers' for the purposes of the Regulations. The following factors were to be taken into account in reaching that decision: (i) the character of the work that a recorder performed in the public service differed from that of a self-employed person; (ii) the rules for the appointment and removal of recorders, which were such that no self-employed person would subject himself to them; (ii) the way that recorders' work was organised for them; and (iv) the entitlement of recorders to the same benefits during service, as appropriate, as full-time judges (see [37], [41], [42] of the judgment). Perceval-Price v Department of Economic Development [2000] IRLR 380 considered; Wippel v Peek & Cloppenburg Gmbh & Co Kg: C-313/02 [2005] IRLR 211 considered; Percy v Board of National Mission of the Church of Scotland [2006] 4 All ER 1354 considered.

(2) In respect of the justification issue, no objective justification had been shown for departing from the basic principle of remunerating part-time workers pro rata temporis. In respect of the aim of fairness, it was irrelevant that the employer was the State and the defendant should be regarded like any other employer. A private employer would not have been able to justify paying part-time workers less or denying them access to its occupational pension scheme and the State should be in no different position. Further, if circuit judges were undertaking tasks which recorders were not required to undertake, the proper response would have been to reward those with extra responsibility payments, not to make a wholesale and indiscriminate exception to the pro rata temporis principle.

In respect of the recruitment aim, promoting a high-quality judicial system was a legitimate aim, but it applied just as much to the part-time workers as to the full-time workers. Both had to be of a high standard and so it was not an aim which divided them. In respect of the cost aim, a discriminatory rule or practice could only be justified by reference to a legitimate aim other than the simple saving of cost (see [55], [57], [62], [69], [75] of the judgment). The claimant was entitled to a pension on terms equivalent to those applicable to a circuit judge. The matter would be remitted to the tribunal for the determination of the amount of the pension to which the claimant was entitled (see [75], [76] of the judgment).

De Weerd, nee Roks v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen: C-343/92 [1994] 2 CMLR 325 considered; Jørgensen v Foreningen af Speciallæger: C-226/98 [2002] 1 CMLR 1151 considered; R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] 2 All ER 487 considered; R (on the application of Elias) v Secretary of State for Defence [2006] All ER (D) 104 (Oct) considered; European Commission v Kingdom of the Netherlands: C-542/09 [2012] 3 CMLR 643 considered; Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 considered.

Robin Allen QC and Rachel Crasnow (instructed by Browne Jacobson LLP) for the claimant John Cavanagh QC, Sarah Moore and Holly Stout (instructed by the Treasury Solicitor) for the defendant. Ian Rogers (instructed by Underwood Solicitors LLP) for the intervener.