A ruling that salaried judges who ‘sit up’ in higher courts from time to time should be paid more for the work has been overturned by the Employment Appeal Tribunal (EAT).
Mrs Justice Heather Williams remitted the case to a differently constituted tribunal (ET) after finding that the original employment judge (EJ) erred in law.
The EAT said the EJ had wrongly focused on them being part-time workers while sitting up, rather than considering whether it was part of their full-time salaried role.
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.
The EJ agreed with this in four of the five cases – three circuit judges who sat in the High Court and one district judge who sat as a recorder.
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 EJ held that, pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, each claimant was not a full-time worker when they sat up, meaning they were part-time workers.
He said the Ministry of Justice had not justified why section 9(1) judges were paid less than section 9(4) judges when doing so and concluded that their less favourable treatment was because they were part-time workers.
However, on appeal by the Lord Chancellor and Ministry of Justice, the EAT said the EJ erred in law “in focusing on the alleged part-time work rather than considering the totality of the claimants’ work in circumstances where the respondents’ case was that the ‘sitting up’ was part of their full-time salaried role”.
This and other related errors “infected” the EJ’s consideration of both the section 9(1) claimants and [the district judge]”.
But Williams J said she was unable to decide the case herself and had to remit it for reconsideration.
The errors meant the EJ “did not make relevant findings about the respondents’ custom and practice in relation to workers employed by them under the same type of contracts as the claimants”.
There may also be “other matters of evidence that bear on the question of whether or not each of the claimants are ‘identifiable as a full-time worker’”, the judge added. These included “specific factual disputes that are currently unresolved”.
The EJ’s conclusions on comparability, causation and justification could also not stand “as they were all predicated on the tribunal’s decision in respect of the claimants’ status”
The parties agreed that the matter should be heard by a differently constituted employment tribunal.