Julian Milford

The ECJ has just issued its judgment in O’Brien v Ministry for Justice C-393/10, concerning whether part-time fee-paid judges have any right to membership of the judicial pension scheme. Although it is a classic example of Euro-opacity, the judgment has interesting things to say about the relationship between EC and domestic employment law.

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”) define “workers” by reg. 1(2) as individuals who work under a contract of employment, or “any other contract, whether express or implied…whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”. This contract-based definition of “worker” will be familiar from domestic anti-discrimination law generally.

Regulation 17 PTWR specifically states that part-time fee-paid judges are not “workers”. But in fact, quite apart from reg.17, judges would not be workers within reg.1(2) PTWR anyway on a pure application of domestic law. That is because, as is very well-established, judges are not employed under a contract: and reg.1(2) PTWR defines “worker” in contractual terms.

That meant that, under domestic law, Mr O’Brien, a retired recorder, could not assert his rights under the PTWR to membership of the judicial pension scheme in the same way as full-time (or indeed, part-time salaried) judges.

Mr O’Brien argued that the PTWR was in this respect contrary to the EC Directive it implemented (the Part-Time Workers Framework Directive 97/81/EC, “PTWD”).

One knows that in other contexts, judges certainly are “workers” for the purposes of EC law: for example, they are “workers” for the purposes of the Equal Treatment Directive – thus, workers for the purposes e.g. of sex discrimination claims – see Perceval-Price v Department of Economic Development [2000] IRLR 380.

However, the term “worker” does not have a uniform definition in EC law. Moreover, there is a crucial difference between the Equal Treatment Directive and the PTWD. In the Equal Treatment Directive, “worker” has an autonomous EC meaning. In the PTWD, “worker” is specifically defined in terms of national law. Clause 2(1) PTWD says: “This Agreement applies 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”. Furthermore, recital 16 of the PTWD states: “with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves Member States free to define those terms in accordance with national law and practice…”

Nevertheless, under usual EC principles, domestic law cannot oust or “trump” the principles underlying EU legislation in such a way as to frustrate them. The first and crucial question referred to the ECJ by the Supreme Court, therefore, was whether it was for national law to determine whether judges were “workers” within the PTWD; or whether there was a Community norm by which the matter was to be determined. Would it frustrate EC law if judges were not to be “workers” under the PTWD?

Anyone hoping for a clear answer from the ECJ to that question will be disappointed. However, there are interesting indications from the ECJ’s judgment of the extent to which the ECJ will bind the hands of national courts, even in a matter such as this, which is explicitly stated to be within the competence of individual Member States.

The ECJ stated as follows:

(1)   Member States cannot apply rules which are “liable to jeopardise the achievement of the objectives pursued by a directive…”: judgment §35.

(2)   That means that a Member State cannot “remove at will, in violation of the effectiveness of Directive 97/81, certain categories of persons from the protection offered by that directive…”: judgment §36. What this seems to mean (albeit opaquely expressed) is that it is not open to Member States to define “worker” in such a way as to include some categories of person, and exclude others, if in fact there is no real difference in the relationships between the notional employee and the notional employer in the different categories.

(3)   The fact that judges are treated as “office holders” is not sufficient to exclude them from the PTWD. Nor is judicial independence, or the particular status of judges: judgment §§41, 47.

(4)   It is for the national court to examine the nature of the relationship between judges and the MOJ, to see whether it is different from an employment relationship: judgment§43.

(5)   However, the ECJ mentioned various criteria which the national court “must take into account” when making that assessment: §§44-47. Those included:

–          The rules for appointing and removing judges;

–          The way in which their work is organised. The ECJ pointed out that they were expected to work during defined times and periods, albeit with some flexibility;

–          The fact that judges were entitled to sick pay, maternity or paternity pay and similar benefits.

Importantly, the ECJ did not refer to the contractual status of the judiciary as a matter of significance in determining the nature of the relationship between judges and the MOJ, and whether that relationship was one of employment. The ECJ gave a strong “steer” that the national court should look at the practical effect of judicial work; and not at its legal status in domestic law. So the PTWD’s statement that “worker” should be defined by national law and practice is, in effect, given a very significant caveat. In reality, the meaning of “worker” becomes an issue to be decided against a given conceptual framework (i.e. what is the nature of the relationship?), in accordance with certain mandatory criteria. Is this leaving the matter up to national courts? It hardly appears so.

The second question referred by the Supreme Court in this case was whether, if judges were workers under the PTWD, it was permissible for national law to discriminate between full and part-time judges, or between different categories of part-time judges. Here, at least, the ECJ gave a clear answer: any difference in treatment would require objective justification, and budgetary considerations would not provide such justification.