UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’. The Supreme Court has followed the invitation from Luxembourg to consider part-time judges as 'workers'.
UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’. In March, the European Court of Justice said in Case C-393/10 O’Brien v Ministry of Justice that such exclusion would only be lawful if the relationship between judges and the Ministry of Justice was “by its nature substantially different from that between employers and their employees falling under the category of workers”.
Holding judicial office was “insufficient in itself” to exclude judges from the protection in the directive, the court went on, as it proceeded to list the factors the Supreme Court should consider when assessing whether the exclusion could be justified. Just because part-time judges and recorders retained the opportunity to practise as barristers didn’t mean they weren’t “in a comparable situation” to full-time judges, the court found, as they performed “essentially the same activity”.
The case was brought by Dermod O’Brien QC, who sat as a recorder for 27 years and was refused a pension when he retired in 2005.
The Supreme Court has decided not to remit the case to the employment tribunal and consider remaining points of fact at a further hearing on the appeal on 21 November. The Justices agreed that this was because there are no “significant disputed issues of fact to be determined” .