Judicial pensions and O’Brien: MoJ retreats before the little army of part-time judges

In these straitened times the Government is cutting off legal avenues to almost everyone, hence denying the crumbs and scrapings of bread and butter this meant to all but those starry City law firms. Now the Ministry of Justice has moved swiftly to block another handy source of minor revenues to lawyers – and to avoid a costly bust-up with members of its own judiciary.

The litigants in this case would have been that oppressed and misunderstood minority, not quite in the newly defined precariat class, but certainly living on the margins of society and needing someone to stand up for them.

They are the little army of part-time fee-paid judges, recorders, tribunal chairs, adjudicators and assessors who keep the wheels of grassroots British justice running smoothly.

What was in prospect was that hundreds of well-shod, sensibly suited, grey-headed or blue-rinsed judges, recorders, tribunal chairs etc would have marched on some of those very same tribunals wildly waving their writs containing their revolutionary demands.

What do they want? Pensions. When do they want them? Now would be nice, backdated if possible, please.

Their case is pretty unimpeachable. The UK Supreme Court has ruled in O’Brien v MoJ that the exclusion of fee-paid Recorders from the judicial pensions scheme was discriminatory against part-time workers under EU equal treatment regulations. It follows that all other judicial fee-paid part-timers have (prima facie) similarly been discriminated against.

The only issue was whether the part-time judges, tribunal chairs, adjudicators etc would have to divert themselves from their important labours to bang in their claim forms before they were time-barred – thus clogging up the Employment Tribunal system and requiring the payment of more judges, tribunal chairs, etc to clear the backlog. Vicious circle, you see.

“A flood of claims would not be in anyone’s interests,” according to the Ministry of Justice. It continues, in a somewhat panicked style: “They would not be in the claimants’ interests, because they would be put to the cost and inconvenience of presenting their claims; they would not be in the Ministry of Justice’s interests, because the Ministry would be put to the cost and inconvenience of responding to the claims; and they would not be in the Employment Tribunal’s interests because of the administrative burden that they would impose upon Tribunals.”

No mention, note, of the interests of lawyers given they may be finding themselves at a bit of a loose end at the moment with the abolition of legal aid in a swath of legal areas not to mention the deterrent effect of new fees on Employment Tribunal claimants.

To stem the tide of protective claims from part-time judges, tribunal chairs, adjudicators etc that would be put in to avoid the time bar the MoJ has instituted a moratorium – in effect a pledge not to raise time bar issues should such cases come to court (the wording of the promise is below). Meanwhile it is designing a “bespoke” pension scheme for Recorders, the implication (though not the promise) being that something of the sort might be applied to all the other part-time judges, tribunal chairs, adjudicators etc.

The time bar moratorium covers anyone who retires or ceases to be a part-timer (including those getting a full time pensionable position) as well as new appointees after 1 March 2013. But in effect it covers all the part-time judiciary, suggesting they need not take any legal action at this stage and await instead the munificence of the MoJ. It makes clear that it is making no admission of liability apart from to Recorders and that it won’t be extending its generosity (should it produce any generosity) to anyone already time-barred by 1 March, for example those who have left the service and not already put in a claim. Nor does it make any promises regarding backdating. So maybe the little army should be lacing up its marching boots after all.

Twitter: alrich0660

Note: A new piece will be of interest: O’Brien loses backdating case
Also: A judge has now (2016) rejected claims for time extensions by part-time judges that she said were already ‘well out of time’ by the time the moratorium was issued in 2013: Miller & Others 2016

Legal note on O’Brien v Ministry of Justice [2013] UKSC 6
Dermot/Dermod Patrick O’Brien, a retired barrister, was a part-time recorder from 1978 and claimed he should have had the same sort of pension rights that accrue to full-time judges.

Otherwise he would be suffering “less favourable treatment” regarding terms and conditions because of his part-time status, contrary to an EU directive transposed into domestic law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/155). For a successful claim the regulations specify at Section 5 (2) that the detriment suffered is specifically “on the ground that the worker is a part-time worker”, not on some other grounds, and that “the treatment is not justified on objective grounds”. Mr O’Brien had simply been told that “the office of recorder was not a qualifying judicial office under the [Judicial Pensions and Retirement Act] 1993 Act, and because there was no obligation to provide him with a pension under European law as he was an office-holder, not a worker”.

The Supreme Court referred to the Court of Justice (CJEU) the matter of worker/office-holder status and whether it is “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”.

On the first question the CJEU said member states could decide on who falls within the “office-holder” category but could do so only “if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.”

‘While there is no evidence that the lack of a pension deters good quality candidates from applying to be recorders, the same may not be true of those parts of the justice system which rely upon fee-paid part-timers to do the great majority of the work’ – Lord Hope

On the second question, unsurprisingly, it said a distinction between full-time judges and part-time judges regarding pensions was unlawful “unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine”. There is an exception for purely casual workers but the MoJ didn’t seek to argue that. In this case, as far as the EU is concerned, a “worker” is distinct from a self-employed person. For judicial figures their mode of appointment and removal is important (so, arguably, since they are appointed, not just called in ad hoc or able to send someone else in their place, they must be “workers”. Judicial office holders in general “are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment” (Sir Robert Carswell LCJ in Perceval-Price v Department of Economic Development [2000] IRLR 380). On the other hand they are, of course, constitutionally independent. According to the MoL: “Judicial office holders exercise their function wholly independently of influence or direction by any Minister, Government Department or agency.”

The MoJ was seeking to muddy the waters in this argument. Judges are, like “workers”, under the control and direction of their employers in terms of being required to come to work and to consider cases and give judgments. The independence with which they do it is simply the approved manner of their work.

Perhaps one day we will have a freelance judiciary, maybe competitive tendering with the lowest bid accepted. Then judges would be independent in employment terms (under a contract for services rather than a contract of service), but their judgment would perhaps be somewhat less than independent with too much thought about getting through the business and on to the next case. But we aren’t there yet. As Lord Hope noted in O’Brien: “The CJEU has, however, made it clear that the principle that judges are independent in the exercise of the function of judging as such is not called into question by extending to part-time judges the scope of the principle of equal treatment to protect them against discrimination as compared with full-time workers.”

The MoJ did not pursue this argument and instead fell back on saying that Recorders were simply different from full-time judges. You should ignore their actual written terms and conditions and look at the reality – when a Recorder was needed, it was more like calling in a barrister to do an individual piece work.

Hope dismissed this: “The court does not accept that the terms and conditions laid down by the Lord Chancellor for recorders do not give a true picture of the reality of the work that is done by a recorder. On the contrary, Mr O’Brien’s evidence shows that he was on one occasion required to explain why he had in two successive years failed to achieve the required number of sittings, and Mr O’Brien had to explain and apologise. The reality is that recorders are expected to observe the terms and conditions of their appointment, and that they may be disciplined if they fail to do so.”

In effect the argument is that an employer must make a clear distinction for EU purposes between a “worker” (ie employee) and a self-employed person. Creating strange hybrids with hidden terms and conditions doesn’t do the job.

So Hope ruled: “the court holds recorders are in an employment relationship within the meaning of clause 2.1 of the Framework Agreement on part-time work”.

The court went on to consider objective reasons that might justify unequal treatment. The MoJ position was that these comprised: “(a) the alternative opportunities available to part-timers, but denied to full-timers, to make provision for their retirement; and (b) the greater contribution made by the full-timers to the working of the justice system”.

Somewhat desperately, on might think, the MoJ argued that EU protections were for poor workers, not the privileged. They had good jobs elsewhere and could make pension provision through them, not through the public purse. But, of course, as Hope noted, while they are sitting as recorders, they aren’t clocking up the hours or income in their other jobs that would then count towards their pension.

As to (b), less onerous tasks – that’s just silly. Pensions are for everyone, not just the people who work hardest or the most hours. Hope did not quite dismiss the argument in these terms. Instead he could find no particular differences between recorders and full-time judges that would justify discrimination except that Recorders are part-time (and hence do less work) and full-time judges are full-time – and hence do more. Obvious, really. There should be no “whole-sale and indiscriminate exception to the pro rata temporis principle”.

The MoJ argued that it could not employ only full-time judges since it needed “a cadre of fee-paid part-timers who can be flexibly deployed to meet the varying demands of court business”. This too is nonsensical and amounts to saying that “we need these people so much that it is legitimate to discriminate against them”. Hope dismissed it thus: “This efficiency should not be purchased at a price which discriminates against the part-timers.”

There was more such argument from the MoJ. “The judicial pension scheme is a substantial incentive for high quality practitioners to seek and accept a full-time appointment” – so presumably it is justified to keep Recorders lean and hungry so they will leap like trained porpoises that little bit higher for the fatter, juicier, full-time rewards. In fact, as Hope points out, part-timers and full-timers must both be of high quality. “While there is no evidence that the lack of a pension deters good quality candidates from applying to be recorders, the same may not be true of those parts of the justice system which rely upon fee-paid part-timers to do the great majority of the work.”

This comment points the way for all those part-timers who are not Recorders and hence not (except by extension) covered by the O’Brien judgment. It is a pretty clear steer for the MoJ that they shouldn’t bother going to the expense of taking other cases through the judicial system to the highest court in the land and beyond unless they have some rather better arguments to deploy than in O’Brien.

Note: The case was remitted to the Employment Tribunal for the determination of the amount of the pension to which Mr O’Brien is entitled. Further note: the Tribunal has now (20/8/13) accepted he should get his pension

The MoJ promise
“The Ministry of Justice undertakes that if a present or former fee-paid part-time judicial office-holder (including legal and non‐legal tribunal members) is in time for the purposes of regulations 8(2) and (3) [of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000] and could not as at 1st March 2013 for a pension-related claim under the 2000 Regulations, the Ministry of Justice will not take any time point against him or her arising from the fact that the claim was not presented until some date after 1st March 2013.”

MoJ statement: Moratorium – fee-paid judicial pension cases