West Law Report

No pension for fee-paid judge

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 10, 2009

No pension for fee-paid judge
Court of Appeal
Published February 10, 2009
O’Brien v Department for Constitutional Affairs
Before Sir Andrew Morritt, Chancellor, Lady Justice Smith and Lord Justice Maurice Kay
Judgment December 19, 2009

A part-time fee-paid judicial office holder was not entitled to claim that he had been subjected to less favourable treatment when he was refused a pension on retirement from office.

The Court of Appeal so held when dismissing the subatantive appeal of Dermod Patrick O’Brien from Mr Justice Langstaff in the Employment Appeal Tribunal on April 23, 2008.

The substantive questions were whether regulation 17 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (SI 2000 No 1551) barred the claimant from bringing his claim and if so, whether he could nevertheless rely on the Part-Time Workers Framework Directive (97/81/EC) (OJ 1998 No l14/9) to argue that it had not been properly implemented into United Kingdom law. Mr Robin Allen, QC and Ms Rachel Crasnow for Mr O’Brien; Mr John Cavanagh, QC, for the defendant.

LORD JUSTICE MAURICE KAY said that in principle, the exclusion of part-time fee-paid judicial office holders did not offend the Directive: see Christie v Department for Constitutional Affairs ([2007] ICR 1553).

It was material to consider the domestic legal landscape into which the 2000 Regulations were introduced. The clear conclusion was that it was not intended that any part-time judicial office holders were to be protected by them.

Further, in 2000 there were no salaried part-time judges. They were all fee-paid on a daily basis.

His Lordship was satisfied that no judicial office holder was protected by the 2000 Regulations and that regulation 17 was inserted, out of an abundance of caution, to make doubly sure that the only type of part-time judge then in existence, the daily fee-paid, was excluded, having regard to the risk then recently illustrated by Perceval-Price v Department of Economic Development ([2000] IRLR 380).

For the reasons given in Christie, it was, in any event, well within the discretion of a member state to exclude part-time judges from the protection of the 2000 Regulations.

Lady Justice Smith and the Chancellor, agreed. Solicitors: Browne Jacobson, Nottingham; Treasury Solicitor.

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