Employment Cases Update

O'Brien v Ministry of Justice C-393/10

Ruling after referral from the UK Supreme Court concerning whether part-time, fee-paid judges are workers or mere office holders and so not eligible for a pro-rata pension.

The background to the case can be found with the Supreme Court judgment. The Supreme Court had declined to express any view on the domestic law and referred the matter to the ECJ to answer two questions:

  1. Is it for national law to determine whether or not judges as a whole are workers who have an employment contract or employment relationship within the meaning of Clause 2.1 of the Framework Agreement [on part-time work], or is there a Community norm by which this matter must be determined?
  2. if judges as a whole are workers who have an employment contract or employment relationship within the meaning of Clause 2.1 of the Framework Agreement [on part-time work], 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?'

The ECJ concluded that

  1. European Union law must be interpreted as meaning that it is for the Member States to define the concept of 'workers who have an employment contract or an employment relationship'  and to determine whether judges fall within that concept but subject to the condition that it does not leave them without the protection of Directive 97/81 (the Framework agreement on part-time workers). An exclusion is permissible only if the nature of the relationship between judges and the MoJ is by its nature substantially different from that between employer and employees.
  2. If judges are found to be protected by the Framework agreement then no distinction can be drawn between full and part-time judges unless it is justified by objective reasons.

The full text of the judgment is available on the Europa website