“Whereas, with regard to terms used in the framework agreement which are not specifically defined therein, this Directive leaves member states free to define those terms in accordance with national law and practice, as is the case for other social policy Directives using similar terms, providing that the said definitions respect the content of the framework agreement.”
“Clause 1: Purpose The purpose of this framework agreement is: (a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work; (b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers. Clause 2: Scope 1. This Agreement applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State. 2. … Clause 3: Definitions 1. The term ‘part-time worker’ refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker. 2. The term ‘comparable full-time worker’ means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills. When there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice. Clause 4: Principles of non-discrimination 1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply. 3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to the European legislation, national law, collective agreements and practice. 4. … Clause 6: Provisions on implementation 1. Member States and/or social partners may maintain or introduce more favourable provisions than set out in this agreement.”
“The PTWD and the framework agreement do not aim at complete harmonisation of national laws in this area, but only, as the agreement’s name indicates, to establish a general framework for eliminating discrimination against part-time workers…The discretion given to member states is however qualified by the need to respect the effectiveness of the PTWD, and general principles of EU law…”
“…it must be borne in mind that the Regulations have to be construed in a highly artificial context. That results not only from the need to conform to the requirements of European law, but also from the special characteristics of judicial appointments and judicial pensions under domestic law. In the first place, while the Regulations assume the existence of a ‘contract’ of employment …, a judicial officer is not employed under a contract…so that references to the ‘terms of a contract’ can at best be applied by analogy.”
“In spite of the resemblance that this may be to the classic ‘elephant’ definitional problem (ie that you cannot define it, but know one when you see it) this element of the regulatory scheme has hitherto not caused litigated problems” (paragraph 133.02). The authors of Tolley’s Employment Handbook say of regulations 2(1) and (2) PTWR: “Despite the vagueness of these definitions, there are remarkably few cases in which there has been any argument over whether a worker is full- or part-time”
“But there are some questions which will one day need answering” (page 1010). I return to the legal issues raised by Ground 1 from paragraph 97 below.
“29. The only basis upon which the appellants’ submission could be correct would be if the approach in Matthews meant that once a large component of the work was the same and once that work was recognised as being important, then the two groups had to be engaged in the same or broadly similar work. But that is not what Matthews decides. Indeed, it is clear that particular weight must be given to those factors and then the question becomes whether the remaining differences are of such importance to prevent the work being regarded as broadly similar. It is not the case that whenever a large component of the work of the two groups is the same, and is of importance, it necessarily follows that the work is broadly similar.”
“42. …we agree with Elias J in Sharma that, whereas domestic law must provide the protection contained in the Directive, it is not limited to such protection. ‘On the ground that’ in regulation 5(2)(a) means what Mummery J said the similar expression in theSex Discrimination Act 1975 meant. Part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause.”
“44. There is, however, little guidance from the Court of Justice as to what might constitute such objective grounds, other than that which we have been given in this particular case[2012] ICR 955 , paras 64 – 66: “64. …the concept of ‘objective grounds’…must be understood as not permitting a difference in treatment between part-time workers and full-time workers to be justified on the basis that the difference is provided for by a general, abstract norm. On the contrary, that concept requires the unequal treatment at issue to respond to a genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose: see, by way of analogy with clause 5.1(a) of the Framework Agreement on Fixed-term Work, Del Cerro Alonso[2008] ICR 145 , paras 57 and 58. “64. …the concept of ‘objective grounds’…must be understood as not permitting a difference in treatment between part-time workers and full-time workers to be justified on the basis that the difference is provided for by a general, abstract norm. On the contrary, that concept requires the unequal treatment at issue to respond to a genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose: see, by way of analogy with clause 5.1(a) of the Framework Agreement on Fixed-term Work, Del Cerro Alonso[2008] ICR 145 , paras 57 and 58. 65. … 66. It must be recalled that budgetary considerations cannot justify discrimination… 45. The first sentence of para 64 means no more than that it is not enough for a member state to provide for the difference in treatment in its law (or enforceable collective agreement): see Adeneler v Ellenikos Organismos Galaktos (Case C-212/04 ) [2007] All ER (EC) 82;[2006] ECR I-6057 . The fact that regulation 17 of the domestic 2000 Regulations excludes fee-paid part-time judicial officers from the protection given by the Regulations is neither here nor there. The second sentence of para 64 repeats the familiar general principles applicable to objective justification: the difference in treatment must pursue a legitimate aim, must be suitable for achieving that objective, and must be reasonably necessary to do so. 46. The opinion of Advocate General Kokott[2012] ICR 955 , para 62, is slightly more expansive: “The unequal treatment at issue must therefore be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria for examining the question whether that unequal treatment responds to a genuine need and whether it is appropriate and necessary for achieving the objective pursued: see Del Cerro Alonso[2008] ICR 145 , para 58 and Angé Serrano v European Parliament (Case C-496/o8P)[2010] ECR I-1793 , para 44.”
“81. I turn to the fundamental question, which is what is meant by the phrase “solely [to avoid] increased costs”…On this it seems to me that we are bound by the guidance given by Rimer LJ at paras 66-67 of his judgment in Woodcock[2012] ICR 1126 , but even if we were not, I would respectfully agree with it. He says in para 66 that the CJEU’s language “cannot mean more than that the saving or avoidance of costs, will not, without more” – my emphasis – “amount to the achieving of a ‘legitimate aim’”
“All the judges of the High Court shall, except where this Act expressly provides otherwise, have in all respects equal power, authority and jurisdiction.”
“(1) A person within any entry in column 1 of the following Table may…at any time, at the request of the appropriate authority, act- (a) as a judge of a relevant court specified in the request; or (b) if the request relates to a particular division of a relevant court so specified, as a judge of that court in that division.”
“(2CA) In the case of a request to a person within entry 5…in column 1 of the Table to act as a judge of the High Court, the appropriate authority may make the request only if the person is a member of the pool for requests under subsection (1) to persons within that entry. (3) The person to whom a request is made under subsection (1) must comply with the request… (4) Without prejudice tosection 24 of the County Courts Act 1971 (temporary appointment of deputy Circuit Judges…) if it appears to the Lord Chief Justice, after consulting the Lord Chancellor, that it is expedient as a temporary measure to make an appointment under this subsection in order to facilitate the disposal of business in the High Court or the Crown Court or any other court or tribunal to which persons appointed under this subsection may be deployed, he may appoint a person qualified for appointment as a puisne judge of the High Court to be a deputy judge of the High Court during such period or on such occasions as the Lord Chief Justice may, after consulting the Lord Chancellor, think fit; and during the period or on the occasions for which a person is appointed as a deputy judge under this subsection, he may act as a puisne judge of the High Court. (5) Every person while acting under this section shall, subject to subsections (6) and (6A), be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the court in which he is acting.
“(1) Her Majesty may from time to time appoint as Circuit judges, to serve in the Crown Court and county courts and to carry out such other judicial functions as may be conferred on them under this or any other enactment, such qualified persons as may be recommended to Her by the Lord Chancellor.”
“(1) Her Majesty may from time to time appoint qualified persons, to be known as Recorders, to act as part-time judges of the Crown Court and to carry out such other judicial functions as may be conferred on them under this or any other enactment.”
“7. Mr Barker was appointed on27 October 2010 as a Specialist Senior Circuit Judge to the Birmingham Civil and Family Justice Centre; he retired in October 2020. Pursuant to an authorisation under section 9 (1) SCA, he acted as a judge of the High Court both at his base court and in London, sitting in both the Chancery and Queen’s Bench Divisions. His salary was that of a senior circuit judge. He described his as a full-time, 100% appointment as specialist circuit judge, with a section 9 authorisation. From the outset of his appointment he was authorised pursuant to section 9. 8. Mr Barker also sat in the Upper Tribunal Immigration and Asylum Chamber (UTIAC) and, from about 2013, UTIAC boxwork, of which there was a large backlog, predominated over High Court work…In addition to work at his base court he sat 30 days per annum in the Chancery Division in London. He estimated that 80-85% of his work at Birmingham was High Court work and 15-20% was county court or UTIAC. Whilst these statistics caused some surprise, there was no direct challenge to Mr Barker’s evidence, which I accept. He accepted that section 9 judges did not do the most serious cases, which would be designated Category A, but he estimated that those amounted to no more than 10% in London; in Birmingham they would be only 1-2% of the High Court work. That evidence was not challenged… 9. Ms George was appointed as a salaried circuit judge on22 October 2014 to sit at Northampton and Leicester. Pursuant to an authorisation under section 9 (1) SCA, she acts as a judge of the High Court sitting in family cases at her base court in Leicester. With effect from3 December 2018 she became the Designated Family Judge for Leicestershire. Her salary is that of a circuit judge, save for a leadership allowance which is not relevant to this case. She was pleased to be given section 9 authorisation as it meant a greater range of work was available to her. Over 4-5 years she has done approximately 60-70 days per annum on section 9 work, not necessarily all day. If she did not have a section 9 authorisation it would be difficult for the court at Leicester to function. Describing her work, she said that she sat as a judge full-time in family work for 210 days per annum, and thought of herself as a county court judge sitting part of the time as a High Court judge… 11. Mr Everall was a salaried circuit judge who was appointed on10 April 2006 to sit at Luton County Court. For part of the year he sat in the Principal Registry of the Family Division in London. Between 2012 and 2014 his base court was Reading County Court, and from 2014 until his retirement on3 June 2020 he sat at the Central Family Court in the Financial Remedy Unit in London. Prior to his appointment as a circuit judge he sat as a deputy judge of the High Court pursuant to section 9 (4) SCA; for those sittings he was paid a per diem rate based on a High Court judge’s salary. Whilst a circuit judge and pursuant to an authorisation under section 9 (1) SCA he acted as a judge of the High Court sitting in family cases at his base courts and in London. His salary was that of a circuit judge. He described himself as a full-time salaried circuit judge throughout. The time he spent on High Court work reduced over time; he estimated 1-5 times per month. 16. Mr Atherton was appointed a district judge in 2000 to sit in the Leeds Combined Court Centre. In 2002 he was appointed a recorder and sat between 15 and 30 days per annum, usually in the Crown Court. On rare occasions he was asked to help out by sitting as a recorder in the county court. From 2011 he opted to become salaried part-time in his role as a district judge and reduced his sitting in that capacity to 90%. Thereafter Mr Atherton sat as a recorder partly during the 90% of time for which he was salaried as a district judge, and partly during the 10% of time for which was not salaried. When the days on which he sat as a recorder in the Crown Court coincided with the 90% of time for which he was salaried he received no additional remuneration; conversely, when he sat as a recorder during the remaining 10% of the time, for which he was not salaried, he received a daily fee based on the salary of a circuit judge. This arrangement was sanctioned by Judicial Office. He retired from the salaried office of district judge in 2019, but continues to sit as a recorder and deputy district judge.”
“ 18. The purpose of section 9 SCA is to facilitate assistance with judicial business…There are currently some 110 High Court judges compared with 416 section 9 (1) and 112 section 9 (4) judges. At the same time, both the volume and complexity of the workload of the High Court has increased. One result is that the system has relied increasingly, and now relies very heavily, on section 9 judges to do a very substantial part of High Court sittings…Lord Woolf noted in 2000 that in the previous 12 months the total number of sitting days by section 9 judges in the three divisions of the High Court was 2,301. Further, it was not in dispute that in 2005 section 9 judges did approximately 45% of High Court sitting days. The evidence suggested strongly that those figures have increased rather than decreased in recent years. 19. A second result is that the practice of allocating to section 9 judges work of lower complexity and importance, as Sir Brian Leveson described it, cannot, as he also acknowledged, always be maintained; work which would otherwise have been allocated to a High Court judge is heard by section 9 judges. Sir Brian said that that ‘sometimes’ happened; in the cases of Mr Barker and Ms George, it clearly happened more frequently than that word suggests. 20. …There is no doubt that the three section 9 judges who sit up in the High Court from whom I heard undertake at times very serious cases in their particular jurisdictions. All also agreed that there was High Court work at the most serious, upper end of the spectrum that they were never, and never would be, asked to do as section 9 judges. Such work would only ever be dealt with by substantive High Court judges. Whilst no precise figures were put before me, on the evidence I heard I was satisfied that this category of work, designated Category A in the civil courts, formed a small portion of the overall volume of High Court work. I saw no reason not to accept as typical Mr Barker’s estimate for the Chancery Division of no more than 10% in London and very much less in provincial centres such as Birmingham. At the other end of the spectrum, Category C cases, normally one-day hearings not raising novel or difficult points might be tried by a master or district judge. Between those two extremes there are cases designated Category B which form the bulk of the work done by section 9 judges. As to the nature and seriousness of the work done respectively by High Court judges and section 9 judges, I accept that in that middle ground, predominantly represented by Category B cases, there is, to adopt Sir Brian Leveson’s phrase, ‘an enormous overlap.’ In provincial trial centres visiting High Court judges who had capacity in their lists would hear Category B cases; but otherwise, and more commonly, such cases would be heard by a section 9 judge… 22. Whilst the findings in the foregoing paragraph apply to the work of the county court and the High Court, the same is not true of … the work of a district judge and a recorder in the Crown Court. In the latter two cases the demarcation is clear and sharp … Mr Atherton’s work as a recorder is fundamentally different from his work as a district judge. In those cases there is no overlap. 23. The interlocutory work, commonly referred to as boxwork, done by section 9 judges acting as judges of the High Court is mixed as between county court and High Court work. Accordingly, no record is currently kept and no statistics are available concerning the respective volume of each or the time spent on each by section 9 judges. 24. I heard some evidence, necessarily largely speculative in nature, concerning the difficulties … that might arise if circuit judges were paid at a higher rate when they sat in their section 9 capacity. If those same circuit judges were responsible for allocating cases to be heard by themselves or colleagues, as section 9 judges, it might be thought that a conflict of interest would arise because judges in that position might be influenced improperly by financial considerations when making such decisions. To a greater or lesser extent, the claimants accepted that such a perception might arise and would need to be guarded against. Whilst it is not for this tribunal to propose procedures, I was satisfied that, if necessary, appropriate checks could be put in place to guard against any such perception. In like vein, I was satisfied that, if necessary, appropriate systems could be devised to determine how much of a judge’s time was spent on county court and how much on section 9 work. 25. Beyond court work itself, it was accepted by the four claimants who were section 9 judges that substantive High Court judges undertake a variety of other duties which they as section 9 judges were not asked to perform. Sir Brian Leveson itemised this non-court work at paragraph 84 a-k of his witness statement, about which there was no significant disagreement. 26. By contrast with judges authorised pursuant to section 9 (1) SCA, a judge appointed pursuant to section 9 (4) to be a deputy judge of the High Court is paid a fee pro rata temporis based on the salary of a High Court judge. Section 9 (4) judges do not routinely do boxwork, though they may do so if their list goes short. In so far as any distinction between the work of the two could be drawn, it is the work of the section 9 (1) judge which is therefore somewhat heavier. 27. A section 9 authorisation gives a judge the opportunity to undertake work at High Court level, which, as well as being more demanding, is more rewarding from a professional point of view. In the event that such a judge applied for appointment to the High Court bench, the experience of having done such work would enable an applicant to provide examples of competency. The appointment of deputy High Court judges under section 9 (4) was seen as a potential move towards appointment to the High Court bench. Similarly, sitting as a recorder would enhance the prospects of a district judge who wished to apply for the circuit bench. 28. The terms and conditions on which circuit judges are appointed have been updated from time to time. The most recent version to which I was referred, that of October 2019, provides, at paragraph 37, that circuit judges are required ‘to devote at least 210 days in each year, and perhaps more, to the business of the courts’. The terms and conditions on which district judges are appointed have been similarly updated. The most recent version to which I was referred, that of December 2009, provides, at paragraph 37, that district judges are required ‘to devote 215 days in each year to judicial business’, and at paragraph 81, that a district judge appointed as a recorder ‘will be expected to sit for a minimum of 15 days a year in that capacity and ..... [that] [n]o extra remuneration in addition to his/her salary as a district judge may be claimed in these circumstances’.”
“42. Stripped of its subordinate clause and phrase, regulation 2 (2) PTWD defines a part-time worker as one who is ‘not identifiable as a full-time worker’. Mr Robin Allen is right therefore to say that the definition of part-time worker itself involves a comparison between a full- and a part-time worker. That is so even before one moves on to consider, under regulation 2(4), the comparability of the work done by the claimants and their comparators.”
“44. There is nothing to prevent a worker from being both a full-time and a part-time worker; many workers are. In a typical industrial context a worker may have a full-time job during the normal working day, working, say, 37 hours per week as a check-out operator, and another job, for the same or a different employer, working evening shifts in a warehouse. Similarly, a worker may have two part-time jobs. In those circumstances, the demarcation between the two jobs is usually clear. In this case the full-time and the alleged part-time work are both done for the same employer; moreover, in three of the cases there is a fluidity between what may be thought of as the ‘core’ county court work and the alleged part-time work in the High Court, such that on some days, when the judge’s list is mixed, no very clear demarcation line is drawn between the two. The latter point is not true of … Mr Field’s cases; their work as recorder… is done discretely on separate days and in a different place. In their cases there are no mixed lists. 45. A further complication is that in all five instant cases the alleged part-time work is done during hours which would otherwise (i.e. if there were no ‘part-time’ work to be done) form part of the hours for which each claimant was paid a salary. Regulations 2 (1) and (2) contemplate that a worker must be identifiable either as a full-time or a part-time worker. That must be so, in my judgment, at any point in time under consideration. Thus where a judge works in two separate jurisdictions, if it is right to say that he/she is working part-time in one jurisdiction, he/she cannot be working full-time in another jurisdiction during the self-same hours. For instance, when Mr Barker acts as a judge of the High Court, or Mr Atherton sits as a recorder, they are not at exactly the same time sitting as a circuit judge or district judge. Therefore, if it is right to say that each claimant works part-time in one jurisdiction, he/she must necessarily be working pro tanto less than full-time, therefore part-time, in the other also. I cannot see that it is possible, consistent with the meaning of regulation 2 (1)-(2) for a worker to be both full-time and part-time during exactly the same period of time.” (Emphasis in original.)
“50. In the industrial example given above, in order to determine whether the hypothetical worker is a part-time worker when working evenings in the warehouse, it is in my judgment obviously necessary to focus on the time when he does that job, and to answer the questions posed by regulation 2 (1)-(2) with specific reference to that time and that job. It does not assist the analysis to look at how the worker fills the rest of his working time, for example doing daytime shifts on the check-out. In Mr Atherton’s case the way in which he fills the rest of his working time, has varied. He was firstly a district judge salaried at 100%, then reduced to 90%, then retired as a district judge; during all of those periods he also did the work of a recorder for approximately 20 days a year in the Crown Court. It seems to me that, in order to determine whether Mr Atherton meets the definition of a part-time worker when sitting as a recorder, I have to ask the relevant questions specifically in relation to the time he spends performing the duties of a recorder. And the same is true mutatis mutandis also in relation to the other four claimants.” (Emphasis added.)
“53. …Nevertheless, as I noted above, it is perfectly clear on the evidence that none of the five claimants spent 100% of their time on the ‘core’ duties of a circuit judge or district judge. It is therefore not accurate to describe the claimants as full-time circuit judges or a full-time district judge when they spend significant portions of their working time performing duties entirely separate from their ‘core’ duties. That must be obvious to the respondents; it was they who authorised, or appointed, the claimants to do other duties besides their ‘core’ duties. The way in which the claimants describe themselves may have some relevance to a consideration of the ‘custom and practice’ of the employer under regulation 2 (1)-(2), but cannot per se be determinative of the issue. It is the custom and practice of the employer upon which the regulation focuses. 54. Some aspects of the respondents’ custom and practice are clearly established in evidence. The practice of authorising circuit judges pursuant to section 9 (1) to act as judges of the High Court was widespread; it was the respondents’ practice to rely heavily on section 9 (1) and section 9 (4) judges, as evidenced by their doing approximately 50% of High Court sittings in recent years. The latter were regarded by the respondents as part-time workers. When they acted as judges of the High Court, there was no material distinction between the work done by section 9 (1) judges and section 9 (4) judges, save that the latter did fewer out-of-court duties. There was, therefore, in my judgment no basis for the respondents’ distinction between the latter as part-time workers and the former as not so. Neither were identifiable – nor were they identified by the respondents – as full-time workers when acting as judges of the High Court. In so far as the distinction was based on the former receiving a salary, and the latter not, they received that salary – the same base salary as circuit judges with no section 9 authorisation – for performing the ‘core’ duties of the respective roles to which they were appointed. In relation to recorders, section 21 CA establishes the statutory position that recorders are part-time judges of the Crown Court…” (Emphasis in original.)
“55. In answer to questions 1-3 posed in the agreed list of generic issues …. Firstly, there was no argument before me on the question of the basis on which the claimants were paid. In each case the claimants’ terms and conditions of service require or required them to devote a certain number of days per year to judicial business or to the business of the courts. If a claimant opted to work a fraction of those hours which was less than 100%, he/she was paid pro rata temporis less. Within the stipulated number of days the hours actually worked by a judge might, and in most cases almost certainly did, vary, but his/her salary did not. The claimants are, or were, therefore all paid in part by reference to the time they work or worked. 56. On the second matter, I find that, having regard to the custom and practice of the respondents in relation to workers employed by them under the same type of contract as the claimants, each claimant was ‘not identifiable as a full-time worker’ when he/she acted respectively as a judge of the High Court… or as a recorder. In those respective capacities, therefore, they were each part-time workers.”
“61. There is no doubt, and it was not the subject of argument before me, that, as in Moultrie so in the instant case, the work done by section 9 judges and by recorders is of the highest importance to the business of the respondents. It is clear also on the evidence before me that a very large part of the work done by section 9 judges is not distinguishable from the work done by High Court judges; the former do approximately 50% of High Court sittings. In the absence of section 9 judges that work would necessarily have to be done by High Court judges. The differences between the two are essentially twofold. Firstly, the very weightiest, most valuable and most important cases are reserved in all divisions of the High Court for substantive High Court judges. All four circuit judge claimants acknowledged that High Court judges did work, both in the High Court and CACD, which they would not be asked to do. Secondly, substantive High Court judges are required to undertake a variety of duties outside their court work which, once again, section 9 judges are not required to do. These duties in many cases require a level of seniority and experience: for example leadership and management, mentoring and career guidance, training and recruitment. Sir Brian Leveson’s evidence concerning the differences, both in court and outside, between the work of High Court judges and section 9 judges was subject to very little challenge and I accept it. Unlike Moultrie, the evidence before me does not enable me to apportion percentages to the differences and similarities between the two. 62. Baroness Hale posed the question thus: ‘If a large component of their work is exactly the same, the question is whether any differences are of such importance as to prevent their work being regarded overall as “the same or broadly similar”’. I am satisfied, consistently with all the evidence I heard, that a large part of the work of section 9 judges is exactly the same as that of substantive High Court judges. I therefore turn to the second limb of the question posed by Baroness Hale. I find that there is a logical difficulty in the respondents’ position. Deputy judges of the High Court appointed under section 9 (4) are paid a daily rate equivalent pro rata to the salary of a High Court judge. That is, in my judgment, an implicit acknowledgement by the respondents that while there are some differences between the work of the two, they are not of such importance as to prevent their work from being regarded overall as ‘the same or broadly similar’. In monetary terms the respondents value the two equally. If the work of a section 9 (4) judge is ‘the same or broadly similar’ to that of a High Court judge, such that the two are paid the same per diem, then on what basis can it be said that the work of a section 9 (1) judge is not so also? The more so as section 9 (1) judges undertake additional functions, such as boxwork, rarely asked of section 9 (4) judges. Thus, by their treatment of section 9 (4) judges, the respondents demonstrate that they do not consider those differences between section 9 judges and High Court judges, which I have accepted from Sir Brian Leveson’s evidence, as being of such importance as to prevent their work from being regarded overall as ‘the same or broadly similar’. In my judgment, on the evidence before me, the respondents are right to adopt that position. It would be contrary to the evidence to suggest – adopting Baroness Hale’s terminology – that section 9 judges are brought in to do ‘the more peripheral tasks.’ 63. In answer to question 4 posed in the agreed list of generic issues, I find that the work of full-time High Court judges is not the same as that of circuit judges acting as judges, or deputy judges, of the High Court, pursuant to authorisation under section 9 (1) or appointment under section 9 (4) SCA. However, the differences between the work of full-time High Court judges and that of both categories of section 9 judges are not of such importance as to prevent their work from being regarded overall as ‘broadly similar’. I am therefore satisfied that a High Court judge is a comparable full-time worker for Mr Barker, Ms George and Mr Everall when they acted as judges of the High Court pursuant to their section 9 authorisation.”
“72. I was unable to reconcile the two strands in Mr Masterson’s evidence. Neither section 9 (1) nor section 9 (4) judges perform all of the functions of a High Court judge. The work of a section 9 (4) judge is not materially distinguishable from that of a section 9 (1) judge (any distinction there may be suggests that the section 9 (1) judge’s work is more rather less demanding); that proposition was not challenged. 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? I find that the respondents’ treatment of section 9 (4) judges undermines their argument that the claimants acting as judges of the High Court are paid differently because they do not perform all the functions of a High Court judge. The respondents’ evaluation of the work done by a section 9 (1) judge compared with that of a substantive High Court judge could not therefore satisfactorily explain the pay differential between them. 73. The evidence of Mr Barker, Ms George and Mr Everall demonstrated that section 9 work was very far from exceptional. In Mr Barker’s case it was the mainstay of his work, and in Ms George’s case it was a very substantial part. I concluded that the respondents’ policy on the payment of section 9 (1) judges was based not on a comparison of their work with that of a substantive High Court judge, nor on whether that work was either ‘exceptional’ or a ‘mainstay’, but on whether the section 9 judge did, or did not, simultaneously hold a salaried judicial office. That was consistent with the way in which all four circuit judge claimants, and mutatis mutandis Mr Atherton also, were paid.” (Emphasis added.)
“77. I do not think Mr Andrew Allen can be right to say that the work of a section 9 judge when acting as a judge of the High Court forms part of his/her salaried work. Section 9 (5) SCA provides that, except for the purposes of remuneration, such a judge shall ‘be treated for all purposes as ... a judge of the court in which he is acting.’ That seems to me to be inconsistent with Mr Allen’s argument. The salaried work of a circuit judge is the ‘core’ work which he/she performs in the Crown Court or county court in accordance with the terms and conditions of their appointment and for which they receive their base salary. Without more, such a judge will never be requested to sit part-time in the High Court. But section 9 authorised judges may be so ‘requested’ by the Lord Chief Justice or his nominee at any time and, if so requested, ‘must comply’. And at the times when they are so requested I have found above that they are not doing the ‘core’ work for which a circuit judge is salaried, but rather work which is broadly similar to a High Court judge’s work. If one asks, as the regulation requires, on what ground they are not paid the respondents’ rate for that High Court work, it cannot, in my judgment, be a satisfactory answer to say, because for the rest of their time they are paid a salary for doing other work which is different. The same reasoning applies by analogy to Mr Atherton whom the respondents have appointed to sit part-time in the Crown Court. If the claimants sat full-time in the High Court or Crown Court respectively, they would obviously be paid at the relevant higher rate. The reason why they are not so paid is because they do so part-time and not full-time. 78. In so far as the respondents’ ground for treating the claimants less favourably was based on a policy decision … I do not think that assists the respondents. Policy considerations relating, for example, to cost or ease of administration, may be a motive for less favourable treatment; but I am not concerned at this stage with the respondents’ motives, but rather with identifying why the claimants received less favourable treatment and whether it was on the ground of part-time status: per Lady Hale in R v Governing Body of JFS and the Admissions Appeal Panel of JFS & Others[2010] IRLR 136 . It cannot in any event be legitimate to have a policy which results in discrimination contrary to the Regulations. 79. For the reasons set out above I cannot find that the reason for the less favourable treatment of the claimants is explained either by a distinction between their duties and those of their comparators, or by the fact of their being salaried when performing different work. In answer to question 8 posed in the agreed list of generic issues, I find 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.” (Emphasis added.)
“85. The practice of paying the claimants their base salary even when they were acting part-time in another, higher paid role certainly solved the problem, in the cases of Mr Barker, Ms George and Mr Everall, of working out how much time they spent on High Court work. But no thought was given to whether that problem inevitably arose and, if so, to any other way in which it might be solved. In the cases of Field and Atherton the problem of recording time spent in the part-time role did not arise. Furthermore, although it was the subject of considerable cross examination, it is not explicitly one of the three matters relied on by the respondents as objective grounds for justification. On that basis I cannot find that the solution of the problem was a legitimate aim, nor, if it was, that payment of base salary only was a reasonably necessary means to solve it. 86. Turning to the first of the three matters relied on, fair and flexible deployment of judges, this is elaborated in Mr Andrew Allen’s closing submissions (paragraph 117 (i)). I have no difficulty in finding, and the claimants accepted, that ‘fair and flexible’ deployment of judges is a legitimate aim, or genuine need, of the respondents. The claimants sat in varying locations and in various courts, within the scope of their ‘core’ duties; for example Mr Atherton occasionally sat as a recorder in the county court though he primarily sat in crime; and when requested pursuant to section 9 the circuit judge claimants complied with those requests. The position of Mr Barker, Ms George and Mr Everall might possibly be different if, in Mr Masterson’s words, such sittings had been ‘an exceptional feature to the judge’s mainstay work’; if, for example, on isolated occasions a judge were asked to take over a list to ‘fill a gap’. But the evidence here is very far from that position: section 9 High Court work was a regular and intrinsic part of their routine, in Mr Barker’s case it was the mainstay. And in Mr Field’s and Mr Atherton’s case their part-time role was a planned part of their working schedule. Giving due weight to both limbs of ‘fair and flexible’, I cannot find on the evidence before me that the respondents’ policy of deployment was both ‘flexible’ and ‘fair’. Further, there was no evidence that the policy of paying the claimants only their base salary was either a suitable or a reasonably necessary means of achieving the aim of fair and flexible deployment. It could not seriously be suggested that the claimants would have been any less flexible if they had been paid the High Court or circuit judge’s rate. 87. Turning to the second matter relied on, this is elaborated in Mr Allen’s closing submissions (paragraph 117 (ii)). As a bald statement, I do not find it contentious that resources should be allocated fairly, or that office-holders should be paid in accordance with their terms and conditions for the work they undertake within their salaried time. What this statement does not touch on is what should happen when a judge is appointed to, or required to comply with a request that he/she undertake sittings which are outside those terms and conditions, and can be undertaken only pursuant to a further appointment or authorisation above and beyond those terms and conditions. Here also, if the requirement to sit at a higher level were a rare occurrence for Mr Barker, Ms George and Mr Everall, or if it were voluntary, the position might be different. But it is both routine and compulsory. Whilst fair allocation of resources is, I find, a legitimate aim, or genuine need, I cannot find that such aim is furthered by requiring a judge, as part of his/her routine work, to sit at a higher level than that to which he/she was appointed and not paying him/her appropriately for such work. It might be thought that fair allocation of resources required exactly the opposite. 88. The respondents assert that the ‘contention that judges should be paid at a rate which reflects the level of work done during a particular period of time would, on a wider basis, have significant financial and administrative consequences’. This statement is at one level self-evident, and at another surprising. Self-evidently, paying any worker the rate for the job costs more than paying the worker less. It is surprising to hear the respondents submit that not paying the rate for the job is a component part of the fair allocation of resources. Less favourable treatment of part-time workers cannot be justified simply on the basis of saving cost. Furthermore, there was no evidence before me of the level of costs to which this part of the respondents’ submissions is directed. 89. The third matter relied on by the respondents (Mr Allen’s closing submissions paragraph 117 (iii)) is on its face also not contentious. The differences in the judicial hierarchy as between full-time roles are already reflected in the differences in pay attributable to those roles; and that no doubt does assist in attracting the best candidates for more senior roles. It is not at all clear, however, how it is said that that aim is advanced by differentiating in pay terms between judges who perform the same or broadly similar work. I find that the respondents’ policy is not a suitable means, nor is it necessary, to achieve the stated aim.” (Emphasis added.)
“In particular they also rely on the submissions as set out in Opening and repeated in Closing submissions that the issue of whether a worker is part-time for the purposes of the PTWD and the Framework Agreement annexed to the PTWD [and] the PTWR should be considered together with the question whether there is a comparable full-time work. It is submitted that – (1) This is the effect of Clause 3 of the Framework Agreement, (2) The PTWR must be construed as providing no less favourable rights than those in the PTWD and Framework Agreement annexed to it, (3) And/or the Claimants are entitled to rely on the Framework Agreement in relation to its definition of a part-time worker and a comparable full-time worker, (4) The conclusion of the ET as to part-time and comparable issues can and if necessary should be upheld further or additionally on this basis in order to comply with Clause 3 of the Framework agreement annexed to the PTWD.”
“(a) Whether the applicant is in breach of the Rules or Practice Direction; in our opinion compliance with the requirement … that an application for permission to amend a notice of appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals. (b) Any extension of time is an indulgence and the appeal tribunal is entitled to a full honest and acceptable explanation… (c) The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including statements and notes of evidence… (d) Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal… (e) In some cases it may be necessary to consider the merits of the proposed amendments… (f) Regard must be had to the public interest in ensuring that business in the appeal tribunal is conducted expeditiously and that its resources are used efficiently.”
“It is therefore not accurate to describe the claimants as full-time circuit judges or a full-time district judge when they spend significant portions of their working time performing duties entirely separate from their ‘core’ duties.”
“There was therefore, in my judgment, no basis for the respondents’ distinction between the latter as part-time workers and the former as not so”
“it cannot, in my judgment, be a satisfactory answer to say, because the rest of their time they are paid a salary for doing other work which is different”
“It cannot in any event be legitimate to have a policy which results in discrimination contrary to the Regulations”
“the same reasoning applies by analogy to Mr Atherton”
“The reason why they are not so paid is because they do so part-time not full-time”
“As to the fair allocation of resources, it is important that judges are paid consistently with their salary grade and their terms and conditions of appointment, in relation to their salaried sittings. If judges were paid at different rates depending on where they sit, as opposed to by reference to their salaried terms, this could lead to difficulties. … The Respondents’ policy enables it to manage its resources in a way that creates fairness and consistency, but also which enables it to maximise the available judicial resources in an efficient way. There can be no doubt that if the Respondents did not operate the policy in the way they do, then there would be significant financial consequences, not only in terms of additional fees payable, but also in relation to administration and management costs, due to the complexity of some claims arising from short periods (see paragraph 17(g) below).”
“…Much family work will be dealt with on the Circuits, whereby the judges with s.9(1) authorisation are likely to be doing lists that require their jurisdiction to be used flexibly. I understand that a judge doing s.9(1) work may only be doing so for a part of their day or for a particular purpose when this arises, as opposed to the whole day. If different rates of pay were to be applied each and every time this occurred, which in practice would be extremely difficult, if not impossible to predict from a planning perspective, then this would lead to difficulties and complications in terms of the administration of judicial pay.”
“appropriate systems could be devised to determine how much of a judge’s time was spent on county court and how much on section 9 work”