The Supreme Court has decided that part-time fee-paid judges are “workers” protected by the Part Time Workers Directive, as their relationship with the Ministry of Justice (MoJ) is in substance an employment relationship, and that their exclusion from entitlement to the pension provided for full-time judges is not objectively justified. The court's rejection of the MoJ's attempts at justification are also of interest to private employers, especially the arguments on grounds of cost.

The MoJ had argued that the unequal treatment was justified by the need to achieve three legitimate aims:

Fairness in the distribution of the State’s resources that are available to fund judicial pensions

The court rejected the argument that part-time judges can do the job in addition to a well paid “main” career, because they are paid the same daily rate as full-time judges minus the pension, and pensions are part of pay. The MoJ’s argument is in effect one of budget and not of fairness, and this is not an argument which can succeed.

The court also rejected the argument that full-time judges do more valuable work and hear more difficult cases: the MoJ had failed to demonstrate this, but even if it were correct, it might justify additional payments to full-time judges for specific additional duties, but would not justify the wholesale removal of pension from an entire group of workers – this was not in fact fairness but “blanket discrimination between different classes of worker”.

Recruitment of a sufficiently high number of good quality candidates to salaried judicial office

This argument failed on the basis that giving or not giving part-time judges a pension would make no difference to those applying to be full-time judges. Promoting a high quality judicial system was a legitimate aim but both full-timers and part-timers had to be of a high standard.

Cost: maintenance of the cost of judicial pensions within affordable and sustainable limits

As cost alone could not be a justification, the MoJ ran a “cost plus” other factors argument based on the necessity to ensure sound management of public expenditure. This was, essentially, that if the part-time judges were to receive a pension, the pensions payable to the equivalent full-time judges would have to be reduced.

The court held that, although sound management of public finances can be a legitimate aim and the Government (or an employer) can set a budget for a particular matter, decisions on how that budget is spent must be consistent with its equal treatment obligations.

This case:

  • reinforces the need to produce evidence to support objective justification arguments in cases of discrimination;
  • is a reminder that the court will look at the reality behind the purported justification: here the employer thought it was presenting a “cost plus” argument but in fact it was an argument based on cost alone, which cannot justify discriminatory treatment; and
  • demonstrates that equal treatment cannot depend upon how much money happens to be available in the employer’s budget; on the contrary, it must allocate that budget in accordance with the principles of equal treatment.