Articles

Calling All Crown Court Recorders

Date: October 30, 2007

Expertise: Employment

THIS IS UNASHAMEDLY A REQUEST FOR MONEY

In 1997 the European Commission promulgated a Directive, the Part-Time Workers Directive (97/81/EC), requiring member states to enact provisions to ensure that part-time workers, that is to say those working for others, not working on their own account, are treated no less favourably than full-time workers. As regards remuneration (which includes pensions) the principle of pro rata temporis is to apply.

By his ‘Terms and Conditions of Service’ a Recorder is expressly engaged to serve as a part-time judge of the Crown Court. He does not work on his own account or in a self-employed capacity. His daily remuneration is approximately equal to the annual remuneration of a Circuit Judge divided by the number of days per year that the latter has to be available for work. Most Recorders are practising members of the bar.

At the time when the Directive was issued the United Kingdom was exercising its opt-out from the EU Social Chapter. Subsequently the Directive became applicable to the United Kingdom (98/23/EC). It contained no provision entitling member states to derogate from the required obligations in the case of part-time judges.

The DTI was the Government department responsible for implementing the Directive in UK law. The DTI published a Consultation Paper and draft regulations which contained no provision excluding part-time judges. However when the regulations themselves were enacted (The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000) an additional regulation (Reg. 17) was tacked on at the end whereby the Government attempted to exclude fee-paid part-time judges from the benefit of the regulations. Salaried judges (of which there are now a few working part-time) are not excluded. It appears that the regulation is only intended to discriminate against Recorders and possibly Deputy District Judges and part-time chairmen of tribunals who are the only category of part-time workers in the UK against whom such discrimination exists. There may be other grounds for disputing the discrimination against Recorders but this article concentrates on the rights derived from the Directive.

I sought disclosure from the DTI under the Freedom of Information Act 2000 of the material which lay behind the inclusion of Reg.17, in particular any correspondence with the DCA, the department whose budget would be debited with the compliance costs. The DTI asserted various reasons for the inclusion of Reg 17 all of which were invalid; however they adamantly refused to disclose the material itself. So much for open government.

On the termination of my appointment as Recorder (on grounds of age) on 31st March 2005 I requested the DCA to comply with its obligations under the Directive and to pay me a judicial pension adjusted to reflect my years of service and days worked. The DCA refused. In these circumstances one might reasonably have expected that the Bar Council would see it as one of its responsibilities to assist me in the interests of a significant proportion of the membership of the profession. Barrister Recorders are only appointed because they are members of the bar; the LCD, insofar as it ever negotiated with anyone on the subject of remuneration, regarded the Bar Council as the negotiating body in respect of Recorders’ remuneration. The Bar Council however, although accepting that Recorders may have a good case for claiming pensions as part-time workers, is not prepared to lift a finger to assist.

I therefore myself sought the advice of the best EU law specialist QC I could find. She advised that the Directive does have direct effect, that in her view part-time judges such as Recorders are within the category of those upon whom the Directive conferred benefits, that the appropriate venue was the Employment Tribunal and that a reference from that tribunal to the ECJ should be sought. She did however warn me that the Government might well take every point regardless of merit in an effort to avoid having to pay.

Accordingly I commenced proceedings in the Employment Tribunal and I am glad to report that the first skirmish, in which the DCA sought to have my claim excluded as being time-barred, has ended successfully.

THE NEED FOR A FIGHTING FUND

The purpose of this article is to seek funds for what may be a long fight. If Recorders affected each contributed £200 to a fighting fund this would, I expect, be sufficient (any contribution gratefully accepted). Subscribers to the Bar Council may feel that the fighting fund would be a more worthwhile recipient of the financial support represented by the voluntary part of their Bar Council subscriptions.

I am putting all contributions into a separate account and will take no benefit myself other than the pension I expect to get in the end. If any contributors wish to remain anonymous, perhaps fearing a black mark on their files at the DCA or for any other reason, I will if requested keep no record of their contributions. Any surplus at the end of the litigation will be refunded to those contributors who have not requested anonymity in proportion to their original contributions.

I am not an employment lawyer and do not act for myself. I have been bearing the cost of solicitors and junior counsel to the present time myself. If there is a silk experienced in employment and EC law who is willing or can be persuaded to volunteer his or her services or who will accept that their remuneration will be limited by the amount of the fighting fund, I would be glad to know. It would be in the interests of all Recorders, and all those who expect to be Recorders as well as part-time chairmen of tribunals, that we have the best representation that can be arranged. I hope that the readership of Counsel Magazine will help where the Bar Council has failed.

“WHAT’S IN IT FOR ME…?”

Every Recorder, (also any Deputy District Judge or part-time chairmen of tribunals) or other person expecting at some stage to accept appointment as such will ask this before contributing. The possible benefits arise as follows.

First, a retiring Recorder would get a pension. My understanding of the position is that if a judge has served 5 years or more, one takes the highest of the last three years remuneration before retirement, divide it by 40 and multiply by the total number of years of service (max 20). There is also a lump sum payable on retirement of 2¼ times the initial pension. Recorders appointed before 1995 may possibly be subject to slightly but immaterially different terms. Recorder A retires after 15 years service having in the best of his last three years worked for 15 days (the current minimum; it used to be 20 days): £515 per day X 15 X 1/40 X 15 = £2,896.88 p.a. pension + £6,517.97 lump sum. Recorder B retires at 65 after 20 years service having in the best of his last three years worked for 30 days: £515 X 30 X 1/40 X 20 = £7,725.00 p.a. pension + £17,381.25 lump sum.

Judges’ pensions are, I believe, non-contributory and indexed. An indexed annuity purchased by a 65-year-old would, I understand, yield about 2½% on the purchase price. On this basis Recorder B in the above example would need to accumulate a pension fund of over £325,000 to enjoy similar benefits.

Second, for current Recorders there is a substantial potential benefit. Recorders and Circuit judges have to attend JSB seminars and similar training. Circuit Judges receive their full salaries when doing so, while Recorders are on half pay. I protested about this in 1995 and the Bar Council (who had not yet mutated into an invertebrate organism) took up the cudgels on behalf of the Recorders albeit unsuccessfully. We learned that this blatant discrimination was said to have been ‘agreed’ with the Bar Council in 1982. From my reading of the letters disclosed at that time, ‘imposed’ would have been a better description. In all events the LCD, as it then was, refused to budge. If my claim is successful, Recorders would, I believe, have to be paid in full. This would benefit Recorders by £257.50 for every day spent attending JSB seminars.

RECORDERS APPROACHING RETIREMENT

The ET has held that a claim by a Recorder as a part-timer for being denied membership of the judicial pension scheme should be brought during the currency of the appointment or within 3 months of its termination. I expect that there are a number of Recorders whose claims could become time-barred before my claim is finally resolved. Any such persons should consider the potential saving of costs if they issue proceedings and have their proceedings joined with mine.

Dermod O’Brien was a Crown Court Recorder on the Western Circuit for 27 years. He was formerly Head of Chambers at 2 Temple Gardens from which he still practices

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