ECJ to rule on part-time judges’ benefit entitlement

A legal battle over part-time judges' right to a pension from the Ministry of Justice has been referred to Europe for a final ruling.

The Supreme Court has referred the test case - O'Brien v. Ministry of Justice - to the European Court of Justice to rule on whether some 8,000 part-time judges are entitled to pension access.

Retired part-time judge Dermod O'Brien QC claimed he - and all other part-time judges - were denied pensions because of their part-time position and because his remuneration was dubbed a "fee" rather than a "salary".

O'Brien - represented by barristers Cloisters - alleged he has been discriminated against which is unlawful under European law, as set out in the Part-time Workers Directive.

However, the Ministry of Justice and its predecessor departments have always refused to pay pensions to fee-paid judges.

The ministry argued this discrimination against part-time workers is not prohibited by European law - asserting that neither O'Brien nor any judge "works" for, or is in an employment relationship with, anyone.

However, the Supreme Court rejected this argument and agreed with O'Brien that, although all judges hold an "office", their relationship with the Ministry of Justice is substantially similar to employment as they are expected to work during defined time periods and are not ‘free agents' in the same way as the self-employed.

The Supreme Court has asked the ECJ to decide whether it is open to national law to determine which employees are considered as workers for the purposes of the directive or if this must be determined at European Union level.

Cloisters QC and former chairman of the Employment Law Bar Association Daphne Romney said: "The judgment in this case will clarify their - and indeed other office-holders' - pension rights. It is now expected that many of the several thousand present and retired part-time judges will also wish to start proceedings against the Ministry of Justice to preserve their position pending the judgment of the ECJ."

A judgment from the Court of Justice is not expected until 2012.