The Ministry of Justice is facing a new pay-out to judges after an employment tribunal found that salaried judges who ‘sit up’ in higher courts from time to time should be paid more for the work.
London firm Leigh Day is acting for around 50 judges who argue that, when they sit up, they are part-time workers and the Ministry of Justice has infringed their right not to be treated less favourably than comparable full-time workers by failing to pay them the rate for that role.
Employment Judge SJ Williams – who also sat in the McCloud litigation on age discrimination in judicial pensions – agreed with this in four of the five cases before the tribunal.
Under section 9(1) of the Senior Courts Act 1981, judges can be authorised to sit in the High Court, Crown Court or Court of Appeal. They are not paid any extra for this on top of their regular salary.
Section 9(4) allows the appointment of deputy High Court judges from outside the judiciary, who are paid a pro rata fee based on the salary of a High Court judge.
The tribunal in London said there were currently 110 High Court judges, compared to 416 section 9(1) and 112 section 9(4) judges.
With the volume and complexity of the High Court’s workload on the rise, “the system has relied increasingly, and now relies very heavily, on section 9 judges to do a very substantial part of High Court sittings”, Judge Williams said – around half or possibly more of all sitting days.
As a result, section 9 judges were no longer restricted to work of lower complexity and importance. Evidence from Sir Brian Leveson, the former president of the Queen’s Bench Division, was that they “sometimes” dealt with matters that would otherwise have been allocated to a High Court judge.
However, the tribunal said that, in the cases of Mr Barker and Ms George, “it clearly happened more frequently than that word suggests”.
The tribunal was satisfied that the proportion of the most serious, ‘category A’ cases – which would never be handed by section 9 judges – was only around 10% of the High Court’s workload.
Three of the claimants – Simon Barker, Jane George and Mark Everall – were circuit or senior circuit judges authorised under section 9(1) to act as High Court judges. The two men retired last year but Ms George still sits and is the designated family judge for Leicestershire.
Patrick Field is a circuit judge authorised to sit as a judge in the criminal division of the Court of Appeal, and Ian Atherton was a district judge who was also a recorder; he retired from the former in 2019 but continues to sit as the latter.
Judge Williams held that, pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), each claimant was not a full-time worker when they sat up, meaning they were part-time workers.
High Court judges were comparable full-time workers for circuit judges sitting in the High Court, the tribunal found, and a full-time circuit judge comparable to a recorder when Mr Atherton had sat as a district judge.
But it held that a full-time High Court judge sitting in the Court of Appeal was not an appropriate comparator for Mr Field.
The Ministry of Justice told the tribunal that section 9(4) judges were paid pro rata to High Court judges because they were practitioners who held no other salaried appointment. More broadly, it echoed Sir Brian’s evidence that section 9 judges did not carry out all of the functions of a High Court judge.
But the tribunal said it could not reconcile these two arguments, and the treatment of section 9(4) judges undermined the government’s position.
“The respondents value a section 9(4) judge’s work the same, in monetary terms, as a High Court judge’s. How, therefore, can it be said that a comparison of their work explains the difference in payment between the claimant section 9 judges and their comparators?”
The tribunal concluded that the less favourable treatment suffered by Mr Barker, Ms George, Mr Everall and Mr Atherton was on the ground that they were part-time workers.
It rejected the argument that it was justified on objective grounds, such as the fair and flexible deployment of judges, and a fair allocation of resources.
Judge Williams noted how often the judges were required to sit up and said it could not described as fair and flexible or that paying the judges less was a reasonably necessary means of achieving that aim.
The fair allocation of resources was a legitimate aim but “it might be thought” that this actually required paying judges appropriately for the level of work they were doing.
The judge also described as “surprising” the Ministry of Justice’s contention that paying judges such a rate would have significant financial consequences: “Less favourable treatment of part-time workers cannot be justified simply on the basis of saving costs.”
All of the claims succeeded except for Mr Field’s, as there was not a comparable worker.
A Ministry of Justice spokeswoman said it was considering the judgment but was unable to comment further at the moment.