A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation they were statutory officers, and so excluded from protection. The word ‘worker’ has a special community meaning, and it is not open to national legislation to use a narrower definition. Such judicial officers were, therefore, covered by sex discrimination legislation.
The purpose of article 119 of the Treaty and the Equal Pay and Equal Treatment Directives was to protect against discrimination. Sir Robert Carswell LCJ said: ‘All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the President of the Industrial Tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They 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.’
Judges:
Sir Robert Carswell LCJ
Citations:
Times 28-Apr-2000, [2000] NICA 9, [2000] NIECA 9, [2000] IRLR 380
Links:
Statutes:
EC Treaty Art 39, Equal Pay Act (Northern Ireland) 1970, Sex Discrimination (Northern Ireland) Order 1976, Equal Treatment Directive 76/207/EEC of 9 February 1976
Jurisdiction:
Northern Ireland
Cited by:
Applied – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
Approved – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Cited – Gilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Northern Ireland, Legal Professions
Updated: 21 April 2022; Ref: scu.84666