O’Brien v Ministry of Justice (formerly Department of Constitutional Affairs) (No 1)
| Jurisdiction | England & Wales |
| Judge | LORD WALKER |
| Judgment Date | 28 July 2010 |
| Neutral Citation | [2010] UKSC 34 |
| Date | 28 July 2010 |
| Court | Supreme Court |
[2010] UKSC 34
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Clarke
Sir John Dyson SCJ
Appellant
Robin Allen QC
Rachel Crasnow
(Instructed by Browne Jacobson LLP)
Respondent
John Cavanagh QC
Sarah Moore
Holly Stout
(Instructed by Treasury Solicitor)
Intervener (Council of Immigration Judges)
Ian Rogers
(Instructed by Underwood Solicitors LLP)
LORD WALKER (delivering the judgment of the court)
Introductory
This appeal raises questions of EU law relating to Council Directive 97/81/EC of 15 December 1997 ("the PTWD") concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC ("the Framework Agreement") which the Court considers it necessary to refer to the Court of Justice under article 267 of the Treaty on the Functioning of the European Union. The appeal also raises questions of domestic law, as to the status and terms of service of judges in England and Wales (the term "judges" being here used as a compendious term so as to include, in general, chairmen and members of tribunals and others exercising judicial functions for remuneration, but not lay magistrates). The domestic law questions cannot easily be disentangled from the questions of EU law, partly because of the Marleasing principle (see Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89 [1991] I-ECR 4135) and partly because Clause 2(1) of the Framework Agreement refers to "employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State".
This judgment is in five sections. The first section summarises the relevant parts of the PTWD, the Framework Agreement and the regulations transposing these EU measures into domestic law. The second and third sections set out the (largely undisputed) facts both as to the wider factual context (including the growing importance of part-time judges in the English legal system) and as to Mr O'Brien's claim against the Ministry of Justice. The fourth section considers and gives this Court's opinion on the relevant principles of domestic law, but with the important qualification that (because of their entanglement with EU issues) some of the Court's conclusions must be treated as provisional, and may have to be revisited in the light of the Court of Justice's preliminary ruling. The fifth and final section explains why a preliminary ruling is necessary, and sets out the questions referred to the Court of Justice.
IThe PTWD, the Framework Agreement and the domestic regulations
The PTWD contains in recital (11) a reference to the parties to the Framework Agreement wishing "…to establish a general framework for eliminating discrimination against part-time workers and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike". Recital (16) is as follows:
"Whereas, with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves Member States free to define those terms in accordance with national law and practice, as is the case for other social policy Directives using similar terms, providing that the said definitions respect the content of the Framework Agreement."
Article 1 states that the purpose of the Directive is to implement the Framework Agreement. Article 2 requires Member States to transpose it into national law by 20 January 2000 at latest.
Clauses 1 and 2 of the Framework Agreement are as follows:
"Clause 1: Purpose
The purpose of this Framework Agreement is:
(a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work;
(b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organization of working time in a manner which takes into account the needs of employers and workers.
Clause 2: Scope
1. This Agreement applies 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.
2. Member States, after consultation with the social partners in accordance with national law, collective agreements or practice, and/or the social partners at the appropriate level in conformity with national industrial relations practice may, for objective reasons, exclude wholly or partly from the terms of this Agreement part-time workers who work on a casual basis. Such exclusions should be reviewed periodically to establish
if the objective reasons for making them remain valid."
The Ministry of Justice does not place any reliance on Clause 2(2). Clause 3 contains definitions of "part-time worker" and "comparable full-time worker". Clause 4 sets out the principle of non-discrimination:
"Clause 4: Principle of non-discrimination
1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.
2. Where appropriate, the principle of pro rata temporis shall apply.
3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice.
4. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4.1."
The PTWD did not initially apply to the United Kingdom. But Council Directive 98/23/EC of 7 April 1998 provided for it to apply to the United Kingdom with 7 April 2000 being substituted for 20 January 2000 as the final date for transposition.
The United Kingdom gave effect to the PTWD and the Framework Agreement by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000 No. 1551) ("the Regulations") which were made on 8 June 2000 and came into force on 1 July 2000. The Regulations were made under section 19 of the Employment Relations Act 1999.
Regulation 1(2) contains definitions, including:
"contract of employment" means a contract of service or of apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;
"worker" means an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under –
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual."
There is no reference to "employment relationship."
Regulation 2 (as amended) contains definitions of a full-time worker, a part-time worker and a comparable full-time worker. It is common ground that if Mr O'Brien was a worker at all, he was a part-time worker.
Regulation 5 sets out the prohibition on unjustified less favourable treatment of part-time workers:
"5. Less favourable treatment of part-time workers
(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if–
(a) the treatment is on the ground that the worker is a part-time worker, and
(b) the treatment is not justified on objective grounds.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate."
Part IV of the Regulations is headed "Special Classes of Person" and contains six Regulations numbered 12 to 17. Regulation 12 (Crown employment) provides (so far as now material)
"(1) Subject to regulation 13, these Regulations have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees and workers.
(2) In paragraph (1) 'Crown employment' means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision."
Regulations 13 (Armed forces), 14 (House of Lords staff), 15 (House of Commons staff) and 16 (Police service) make similar provision for the classes of service personnel, office holders or employees to which they relate (but subject to an exception for certain types of military training under the Reserve Forces Acts). Subject to that exception all these provisions include within the scope of the Regulations persons who would not or might not otherwise be included.
By contrast Regulation 17 (Holders of judicial offices) disapplies the Regulations in relation to fee-paid part-time judges:
"These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid...
To continue reading
Request your trial
-
Hashwani v Jivraj
... ... (Comm) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION COMMERCIAL ... for Constitutional Affairs v O'Brien [2008] EWCA Civ 1448 , the ... ...
-
Agnew Anderson,and others vs Chief Constable of the Police,Police Authority for Northern
...-”. 185. The Supreme Court approved those observations when considering the position of part-time Judges in O’Brien v Ministry of Justice [2010] UKSC 34. It is therefore beyond argument that Judges, at whatever level, are workers for the purposes of European law. The same must apply of nece......
-
Hashwani v Jivraj
... ... Justice David Steel) ... Before: Lord Justice ... 194 (magistrates) , Perceval Price v Department of Economic Development [2000] IRLR 380 unal chairmen) and Department for Constitutional Affairs v O'Brien [2008] EWCA Civ 1448 ... ...
-
Hashwani v Jivraj
...to the service of the Church." 33 Some consideration was recently given to the position of part-time judges by this court in O'Brien v Ministry of Justice (Note) [2010] UKSC 34, [2010] 4 All ER 62 where the court considered Percy in some detail in a judgment of the court given by Lord Walk......