O’Brien v Ministry of Justice (Council of Immigration Judges intervening) referred by Supreme Court to the ECJ

03 Aug 2010

O’Brien v Ministry of Justice [2010] UKSC 34

The Supreme Court decided to make a reference to the ECJ in a case concerning the statutory exclusion of part-time fee-paid judges from the scope of the Part-time Workers Regulations 2000 (“the Regulations”), which implement the Part-time Workers Directive (“PTWD”). Salaried judges (full-time and part-time) receive pensions, but part-time fee-paid judges do not.

The appeal raises the issue of the distinction between an office-holder and an employee and is therefore of general interest to employment law practitioners.

Interest for EU law practitioners lies in the conflict between, on the one hand, the freedom left by a directive to Member States to define terms which determine its scope and, on the other hand, the need for uniform interpretation of the directive. Rights under the PTWD are granted 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”.

The Council of Immigration Judges (“CIJ”) instructed Ian Rogers to intervene in the Supreme Court by way of written submissions. He argued that the PTWD and Regulations should be interpreted with regard to analogous fixed-term workers legislation. In the latter context, the ECJ had held in Impact that the relevant directive was directly effective. Having had its attention drawn to this authority, the Ministry of Justice conceded that the rights accorded by the PTWD were also directly effective.

He also argued that the ECJ’s judgment in Del Cerro Alonso limited the breadth of discretion left to Member States. The Ministry and the Court of Appeal relied heavily on Wippel v Peek, but the Supreme Court accepted the CIJ’s argument that the part of the Advocate-General’s opinion, on which the Ministry relied, had not been adopted by the ECJ. The CIJ’s argument also drew analogies with parallel concepts in the Working Time Directive jurisprudence (e.g. Jaeger). The Supreme Court held that Del Cerro Alonso represented the “high point” of Mr O’Brien’s case.

The following questions were referred to the ECJ:-

(1) Is it for national law to determine whether or not judges as a whole are “workers who have an employment contract or employment relationship” within the meaning of clause 2.1 of the [PTWD], or is there a Community norm by which this matter must be determined?

(2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the [PTWD], 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?

Ian Rogers appeared for the Council of Immigration Judges.

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