Of direct personal interest to a minority of our readership – albeit a very important one(!) – is O'Brien v Ministry of Justice in which the European Court of Justice (ECJ) dealt with a long running case on the question of whether part-time fee paid judges are entitled to the protection afforded to part time workers by the EU Part Time Workers Framework Directive 97/81/EC. It arises because while full time judges, and salaried part time judges, are entitled to pensions as part of their terms of service, no pension provision is made for judges who work on a fee-paid sessional basis. Pensions for judges have traditionally been paid on what many regard as very generous terms so the issue is very significant for those affected. Two questions were referred to the ECJ:
- 1. Is the question of who is, or is not, a “worker” and thus protected, a question for national law alone, or is there an EU standard?; and
- 2. If judges are “workers” is it permissible to treat full and part time judges differently, and part time fee-paid judges differently from part time salaried judges?
The answer to the first question is yes: the definition of a worker is a matter for national law, and so the case is going back to the Supreme Court to decide whether the position of judges as office holders is substantially different from an employment relationship. It will then need to determine whether unequal treatment with regard to pensions responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. So only a little further forward then. Although dealing with what appears to be a narrow issue applicable to specific office holders, the case may also be of interest to companies who use non-executive directors, as well as those who bring in consultants to perform defined functions on a regular basis.