Advocate general Kokott has handed down her opinion in the long-running judges’ pensions case of O’Brien.
If followed, thousands of part-time judges would be eligible for pensions.
The case, O’Brien v Ministry of Justice: C-393/10 centres on whether judges are “workers” for the purposes of the Part-Time Workers Regulations and therefore qualify for protection under those Regs.
The significance is that O’Brien, a part-time recorder for nearly 30 years, would then be eligible for a judicial pension.
Last year, the Supreme Court referred the case to the European Court of Justice, which must now rule on whether national or European law should determine whether judges are workers and, if they are, whether UK law can lawfully discriminate between part-time and full-time judges.
Advocate general Kokott considers that it is for national law to decide, and that national law cannot discriminate between full-time and part-time judges, or between different kinds of part-time judges.
She said the Supreme Court would “have to bear in mind that, according to the order for reference, judges—including fee-paid judges—are entitled to sick pay, maternity or paternity pay, and similar benefits.
“Accordingly, they appear to enjoy social rights generally associated with workers. If judges are treated in the same way as workers in this respect, even though they cannot, formally, be regarded as workers, this can be seen as an indication that the nature of their office is not substantially different from what is regarded as an employment relationship according to national law”.
The recommendations of advocates general are not binding on the court but are usually followed.
