A case regarding the Ministry of Justice’s refusal to pay out pensions to 8,000 part-time judges has been referred by the Supreme Court to the European Court of Justice.

Retired part-time judge, Dermod O’Brien QC, claims that he is entitled to a judicial pension on retirement pro rata to the pension of full-time circuit judges.

O’Brien believes he has been discriminated against and that this is unlawful under European law as outlined in the Part-time Workers Directive.

The part-time judges’ remuneration is referred to as a ‘fee’ rather than a ‘salary’, and is paid pro rata to full time judges. They are also entitled to all the same benefits such as maternity and sick pay.

The Ministry of Justice and its predecessor departments have never paid pensions to these fee-paid judges, and argued that this discrimination against part-time workers is not prohibited by European law since no judge ‘works’ for or is in an employment relationship with anyone.

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

“It’s unusual for the key players in the justice system to question just how justly they themselves are being treated,” commented former chair of the Employment Law Bar Association, Daphne Romney QC of Cloisters. “There are two important legal points for clarification in Mr O’Brien’s case.

“First there is the question of whether he (and others in similar roles) are being discriminated against under the European Part Time Workers Directive; secondly the Supreme Court is asking whether these office holders should in fact be classed as ‘workers’, because the Supreme Court has concluded that their office has many of the characteristics of employment.”

Romney said the question of why part-time judges are treated less favourably by the MOJ than their full-time or salaried counterparts is significant from a European and domestic law perspective.

“Dermod is one of thousands of part-time judges remunerated on this fee-paid daily basis. 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 European Court of Justice.”

The judgment from the Court of Justice is expected in 2012.

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