or powers in that regard. The EAT agreed with the tribunal on both points. Nor could her claim for race discrimination succeed. Her treatment was not because she was Indonesian, but because she was in the UK illegally and without a work permit.
ARE EMPLOYMENT JUDGES ‘WORKERS’?
1 March 2012 A part time judge challenged the government over its refusal to pay him a pension arguing that as an ‘office holder’ rather than a ‘worker’ he had no entitlement. Daniel Barnett’s Employment Law Bulletin reports: In this case O'Brien v Ministry of Defence - Mr O'Brien - a part time judge - had challenged the UK government over its refusal to pay him a pension. The Government argued that as an "office holder" rather than a "worker" he had no such entitlement despite the fact that he was entitled to other worker rights such as maternity and sick pay. The Court decided in favour of Mr O'Brien and some 8,000 other part time judges. Part time judges far out number full time judges. The Court of Justice of the European Union found that whilst it was for member states to define who is a worker for the purpose of the Part Time Workers Directive, and in particular, to determine whether judges fall within that concept, such a determination must not arbitrarily exclude judges from the Directive's protection. To be excluded from protection the national court would have to find that part-time judges had a substantially different kind of relationship with, the Ministry of Justice, from that between full-time judges and the Ministry of Justice. In addition, the European Court observed that the fact that judges are labelled as "judicial office holders" rather than "employees" is insufficient in itself to exclude them from protection against discrimination. A distinction between full-time judges and part-time fee-paid judges is only lawful if it is justified by objective reasons. The case will return to the UK courts for this to be determined. The Court noted that they had been told by the parties that recorders and full-time judges perform essentially the same activity. 1 March 2012 When, after a re-organisation, a redundant employee is invited to apply for a newly created role, can the employer appoint "the best person for the job", even if that involves a degree of subjectivity? Daniel Barnett’s Employment Law Bulletin reports: Yes, says the EAT (Underhill P) in Samsung Electronics v Monte D'Cruz . Samsung re-organised its print division. The claimant was one of three Heads of Department who were informed their roles would be abolished and merged into a new, single, position of Head of Sales. The claimant unsuccessfully applied for this post. He was assessed on a presentation and scored against competencies normally used in the annual appraisal process. He then unsuccessfully applied for a more junior role arising out of the re-structure. REDUNDANCY AND SUITABLE ALTERNATIVE EMPLOYMENT
CIPP Policy News Journal
09/10/2012, Page 67 of 234
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