[Thanks to Nathaniel Caiden of Cloisters Chambers for preparing this case summary]
Advocate General Kokott has handed down her decision today in O'Brien v Ministry of Justice. She considers that although it is for national law to decide if a part time judge is a worker, it was not permissible for national measure to discriminate between full-time and part-time judges, or between different kinds of part-time judges.
The case was referred by the Supreme Court on 28 July 2010. Mr O'Brien a part-time judge (who was paid a daily fee) had argued at the Supreme Court that the specific exclusion of part-time judges who are paid a daily fee from the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was incompatible with the Part-Time Workers Framework Directive (97/81/EC) and so the Directive had not been properly implemented into UK Law.
The matters referred were
- Is it for national law to determine whether or not judges as a whole are workers within the meaning of the Framework Agreement, or is there a Community norm by which this matter must be determined?
- If judges as a whole are workers within the Framework Agreement, 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 AG's opinion on the first question was that it was for national law to determine whether or not judges are workers within the meaning of the Framework agreement, but that there were limits on the discretion of Member States in defining a worker as they must guarantee the result imposed by EU law and EU instruments need to be effective.
The question in the present case was whether the nature of a judge's employment relationship is substantially different from those that fall within the definition of 'worker' in national law. Mere labels attached (such as 'office holders') were therefore irrelevant in determining the nature of the employment relationship and so in answering the 'worker' question.
In answer to the second question, it was not permissible for national law to discriminate between different kinds of judges in the provision of pensions.
It will however be several months until the Court of Justice of the European Union hands down its decision; the CJEU's decisions normally, but not invariably, follow the recommendation of the Advocate General.