Mr R Dodds and others v Ministry of Justice and Lord Chancellor: 2202235/2019 and others

EMPLOYMENT TRIBUNALS

Case No 2202235/2019

Between

Mr R Dodds and othersClaimant

Ministry of Justice and Lord ChancellorRespondent

Before

Employment Judge S J Williams

Date 28 October 2024

JUDGMENT

The judgment of the tribunal is that the complaints of Mr Barker, Ms George, Mr Everall and Mr Atherton succeed. The claim of Mr Field fails.

REASONS

[1]The five claimants in these proceedings have been selected as samples representative of a larger number of judges at various levels in the judiciary who have brought similar complaints. The five claimants are each salaried in their respective judicial offices. Pursuant to differing arrangements, they each sit from time to time in judicial capacities remunerated, on a substantive basis, at a higher level than their respective salaries. The claimants do not receive any additional remuneration for so doing. The term ‘sitting-up’, whilst it has no statutory or other authority, will be used in this judgment as a convenient way of referring to the circumstances just described.

[2]By their complaints to this tribunal pursuant to regulation 8 of the Parttime Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), the claimants claim that, when they ‘sit-up’, they are part-time workers, and that the respondents have infringed their right not to be treated less favourably than comparable full-time workers by failing to remunerate them at the level appropriate to the higher judicial capacity in which they sit.

[3]Mr Robin Allen adduced the evidence of the five claimants, Simon Barker, Ian Atherton, Jane George, Patrick Field and Mark Everall. Mr Andrew Allen adduced the evidence of Clement Goldstone, Simon Masterson and Sir Brian Leveson. All witnesses gave their evidence in chief from written statements and were cross-examined. Counsel for both parties produced extensive written opening and closing submissions on which they elaborated orally. Because time for closing submissions on the final day was short, leave was given to counsel to submit further written supplementary submissions. Mr Robin Allen submitted an undated Response to Factual Assertions in the Respondents’ Closing Submissions; Mr Andrew Allen submitted a Reply to that document dated 15 October 2021; and Mr Robin Allen submitted the Claimants’ Last Word dated 22 October 2021. The tribunal was provided with a trial bundle containing pages 1-2369, a supplementary bundle containing pages 1-239, and a bundle of authorities.

[4]With the exception of Sir Brian Leveson, it was agreed than honorific titles would not be used during the hearing. This judgment will follow the same practice.

[5]This hearing was concerned with liability only. The parties have consented to the case being heard and decided by an employment judge sitting alone. The Facts Personal circumstances of the claimants

The Facts

[6]The professional circumstances of the claimants fall into three distinct categories. In summary, Simon Barker, Jane George and Mark Everall are, or were at material times, circuit judges or senior circuit judges authorised pursuant to section 9 (1) of the Senior Courts Act 1981 (SCA) to act as judges of the High Court. Patrick Field is a circuit judge authorised pursuant to section 9 (1) SCA to act as a judge of the Court of Appeal (Criminal Division) (CACD). The term ‘section 9 judge’ will be used to describe a judge authorised pursuant to section 9 (1). Ian Atherton was at material times a district judge who also held the appointment of recorder pursuant to section 21 (1) of the Courts Act 1971 (CA).

[7]Mr Barker was appointed on 27 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. Two of his colleagues with section 9 authorisations were salaried part-time at 70%, with the result that he did more of the High Court work in Birmingham than they. 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. Mr Barker accepted that there is out-of-court work which High Court judges do and section 9 judges do not.

[9]Ms George was appointed as a salaried circuit judge on 22 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 from 3 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. Section 9 work is a step up from Ms George’s usual county court work

[10]Most family cases are now started in the Family Court. A few reserved jurisdictions, which were detailed by Sir Brian Leveson, must be started in the Family Division of the High Court. These are such cases as the most serious public law cases, financial remedies exceeding £10 million, radicalisation cases, surrogacy and withdrawal of medical treatment. Ms George accepted these would be dealt with only by substantive High Court judges, and that they did work outside court which she was not asked to do.

[11]Mr Everall was a salaried circuit judge who was appointed on 10 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 on 3 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.

[12]Mr Everall was inclined to think that Sir Brian Leveson’s lack of personal knowledge of family work had led him to underestimate the seriousness of the work of section 9 judges and to overstate the demarcation between theirs and the work of a High Court judge. What are the ‘serious’ and ‘most serious’ cases is a matter of judgment; whilst there may have been occasional borderline cases, or even exceptions, I accept there were clear categories of family case, described by Sir Brian, which a section 9 judge would rarely, if ever, do.

[13]The make-up of the work done by Mr Barker, Ms George and Mr Everall varied from day to day and week to week, as did the balance between their work as circuit judges and as High Court judges. The findings of fact relating to their work and that of the other two claimants are intended to give a fair overall picture of their work patterns and workloads, rather than to catalogue each individual variation.

[14]Mr Field is a salaried circuit judge who was appointed on 16 July 2012 and sits in Manchester Crown Court. Pursuant to an authorisation under section 9(1) SCA given in 2017, he acts as a judge of the Court of Appeal (Criminal Division) (CACD) for approximately 15 days per annum. He described himself as a full-time judge with two aspects to his work: spending part of his time as a circuit judge and part of his time as a judge of the CACD. His section 9 authorisation is restricted to the CACD; he never sits in the civil division of the Court of Appeal, nor in the High Court. His salary is that of a circuit judge.

[15]Though the constitution of a particular court may vary, when the court includes a section 9 judge the CACD generally comprises a Lord or Lady Justice of appeal, a High Court judge (serving or retired) and the section 9 judge. A High Court judge sitting in the CACD will also sit pursuant to section 9 SCA. When deliberating on an appeal, all members of the CACD have an equal role in the making of the judgment. There are, however, significant differences in the ambit of work in the CACD which may be undertaken by a section 9 circuit judge and by more senior judges, including High Court judges. Section 9 circuit judges are not permitted to sit on certain categories of appeal, they do not consider paper applications for leave to appeal, they do not preside over the court, they do not ordinarily give judgment on substantive appeals against conviction but may do so on renewed, oral applications for leave and they do not generally write the judgment of the court. Whilst a court might include two High Court judges, it would never include two circuit judges. It was accepted that some High Court judges who sit in the CACD have little experience of criminal law.

[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. General findings

[17]There was argument in cross examination and submissions about the nature of the work done by section 9 judges acting as judges of the High Court. It is clear to me – it might even be thought self-evident – that such work is properly categorised as High Court work. If that were not so, it would be dealt with by a circuit judge and no section 9 authorisation would be required. It follows also that if there were no section 9 judges then, under present arrangements, such work would have to be done by High Court judges.

[18]The purpose of section 9 SCA is to facilitate assistance with judicial business. There was some tension between the respondents’ witnesses concerning the extent of that assistance. Mr Masterson said such assistance was expected to be not substantial, an exceptional feature of the judge’s work. However, Sir Brian Leveson stated that the High Court had operated in recent times persistently below its statutory complement of judges. 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. Whilst there was some lack of clarity between various sets of data placed before me, 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]The work of the High Court, like any other court, embraces a broad spectrum, judged against a range of criteria, such as complexity in legal or evidential terms, monetary value, public profile and importance, length of hearing, the effect of the decision on other people and probably other criteria too. 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. The evidence of the shortage of High Court judges reinforces that conclusion.

[21]The demarcation between work suitable to be dealt with by circuit judges, section 9 judges and substantive High Court judges is necessarily to a very significant extent a matter of judgment. The distinction between county court and High Court work was aptly described as a curve, not a step. That is particularly so in relation to family work where, in addition to the Family Division of the High Court, cases in the Family Court itself may be dealt with by judges at all levels of the judiciary. In the Queen’s Bench and Chancery divisions also, judgments have to be made about the appropriate level of judge to hear a particular case. Where there is any doubt, those decisions are normally referred to the relevant liaison or supervising judge, who in any event must authorise a judge to act pursuant to section 9. Such decisions have to be made currently in the context of the shortage of High Court judges and of the consequent increasing dependency of the system on section 9 judges described above.

[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 Crown Court and the CACD, nor 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 Field’s work in the CACD is fundamentally different from his work in the Crown Court; and 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, both perceived and practical, 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.’

[29]Whether a circuit judge who was also a section 9 judge, and who opted for salaried part-time working, might act as a judge of the High Court during their non-salaried time, and claim remuneration at the higher rate based on a High Court judge’s salary, remained a moot point in evidence and submissions. Sir Brian Leveson said that he would not have authorised such a practice. As noted above, however, Mr Atherton did sit in the Crown Court during his non-salaried time, apparently with official approval.

[30]High Court judges are paid no more than their normal salary when they sit in the Court of Appeal, and no less when they sit in the Crown Court. Similarly, circuit judges are paid no less if they sit in a lower-paid jurisdiction such as the coroner’s court.

The Law

[31]The Courts Act 1971 provides 21 Appointment of Recorders (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.

[32]The Senior Courts Act 1981 provides 9 Assistance for transaction of judicial business(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..... (Entry 5 in the Table provides that a circuit judge is competent to act in the High Court and the Court of Appeal.)

(2) ....

(3) The person to whom a request is made under subsection (1) must comply ...

(4) The Lord Chief Justice ... may appoint a person qualified for appointment as a puisne judge of the High Court to be a deputy judge of the High Court...

(5) Every person while acting under this section shall, subject to subsection (6) ....., 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.

(6) A person shall not by virtue of subsection (5) – be treated as a judge of the court in which he is acting for the purposes of ... any statutory provision relating to (iii) the remuneration, allowances or pension of such judges.

[33]I have been referred to and considered Council Directive 97/81/EC and the annexed Framework Agreement on Part-time Work. The Framework Agreement has been transposed into UK law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), which provide 2 Meaning of full-time, part-time and comparable worker(1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.

(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full-time worker.

(3) .....

(4) A full-time worker is a comparable full-time worker in relation to a parttime worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place – (a) both workers are – (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work ... 5 Less favourable treatment of part-time workers (1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker – (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if – (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds. 6 Right to receive a written statement of reasons for less favourable treatment (1) If a worker who considers that his employer may have treated him in a manner which infringes a right conferred on him by regulation 5 requests in writing from his employer a written statement giving particulars of the reasons for the treatment, the worker is entitled to be provided with such a statement within twenty-one days of his request. 8 Complaints to employment tribunals etc (6) Where a worker presents a complaint under this regulation it is for the employer to identify the ground for the less favourable treatment or detriment. It is common ground that the terms ‘worker’, ‘employer’ and ‘contract’ must be read by analogy as applying to the circumstances of the claimants and the respondents. It is noteworthy that, while the Framework Agreement requires that the less favourable treatment should be ‘solely because’ of the part-time status, the PTWR require, somewhat more generously, that it be ‘on the ground that the worker is a part-time worker’.

Issues

[34]The tribunal was provided at the outset with an agreed list of generic issues to which I shall refer below in the section dealing with my conclusions. Submissions

[35]I received written submissions from both counsel totalling in excess of 200 pages. I summarise here only very briefly counsel’s oral submissions. Mr Andrew Allen submitted that the case was not about fair pay; fairness could be relevant only to objective justification. It was important to consider the issues sequentially and not elide them, as he said Mr Robin Allen was doing. A claimant had to point to a full-time comparator, which was fatal to Mr Field’s claim. The differences between the work of section 9 judges and High Court judges placed the two groups apart such that they were not comparable; their work was not identical. The description by the claimants of their own work was relevant. The claimants’ section 9 authorisations depended on their appointments as circuit judges. The claimants were full-time judges and were in each case paid in accordance with their substantive salary. The respondents did not seek to justify the claimants’ treatment on cost alone. The respondents’ did not rely on the suggestion of conflict of interest as a fourth limb of their justification argument. Apart from the omission of the word ‘solely’ there was no relevant distinction to be drawn between the PTWD and the PTWR.

[36]Mr Robin Allen submitted that the PTWR were the last link in a chain stretching through the PTWD, the community charter and back to the principle of non-discrimination. Fairness of pay was relevant not in a general sense, but it was so in the context of part-time working. It was appropriate to consider part-time status and comparability together; they were interlocked. A full-time worker was someone who worked more hours than a part-time worker. The case of Matthews concerning regulation 2 was helpful but not determinative. This tribunal should take the same approach as the Northern Ireland Industrial Tribunal took in Keegan where the respondents’ appeal was abandoned and dismissed. That case, in which the issues were extremely similar, deserved respect; the respondents did not there argue justification. The respondents sought to put ‘blue water’ between section 9(1) and 9 (4) judges, but they clearly valued the latter in the same way as High Court judges. The respondents’ attempt to deny a comparison between section 9 (1) judges and High Court judges collapsed when one looked at section 9 (4) judges. The SSRB had the principle of not subdividing a post, which was fundamental to the claimants’ case. The argument that the claimants remained circuit judges when acting as High Court judges was not consistent with section 9 (5) SCA; they were acting in a different capacity. Section 9 (6) was trumped by the PTWR. The PTWR cannot be avoided by saying that the claimants agreed to the treatment by accepting their terms and conditions. The ‘business of the courts’ and ‘judicial business’ had to be construed in the context of the particular office held. In relation to Moultrie, the respondents acknowledge that a section 9 (4) judge’s work is comparable to a High Court judge’s. Barton was doubtful because there was no reference to clause 3 of the Framework Agreement and no reference to Bruno and Pettini. Regulation 2

(2) did not properly transpose clause 3 of the Framework Agreement. Any High Court judge sitting more hours than Mr Field could be a comparator.

[37]The proper question under regulation 5 was not why the claimants were paid as they were, but why they were not paid on a no less favourable basis than their comparators, i.e. why they were not paid more. One had to ask what the situation would have been if the part-time worker had been fulltime. It was inconceivable that the respondents could have refused to pay at the higher rate a claimant who acted full-time as a High Court judge. Mr Masterson gave the rationale that the situation was expected to be exceptional. On the question of justification, if you haven’t thought about the justification before applying the policy you will not have tested the alternatives. The respondents had taken an ‘ostrich-like’ approach to the implications of Keegan, notwithstanding that their counsel had recognised them.

[38]As will appear from my conclusions below, I was referred to a number of authorities. I was invited by Mr Robin Allen to have particular regard to the case of Keegan decided by the Northern Ireland Industrial Tribunal in 2017 on comparable, though not identical facts. Mr Andrew Allen on the other hand urged on me the arguments that Keegan was decided on different facts, was not binding on this tribunal and was, in any event, wrongly decided. I accept the first two arguments of Mr Andrew Allen. As to his third argument I express no view. I have considered Keegan, but have not relied on it as an authority when reaching my decision. Rather, I have attempted to identify the relevant facts in the cases before me and to apply to those facts the law as I understand it to be.

Discussion and conclusions

[39]I bear in mind when considering these five complaints that whilst there are similarities between some of them, there are also significant differences between their facts. They do not necessarily stand or fall together, and must be considered individually.

[40]The claimants consider that their work as judges of the High Court, the CACD or as a recorder should be treated by the respondents as a part-time job and paid at a higher rate than what I will term their ‘base’ salary. They argue that the work they do when acting as judges of the High Court, the CACD or as a recorder is higher status, higher value work which ought to be reflected in higher pay. They argue that the respondents are getting the work done ‘on the cheap’ and that the respondents’ pay structure is otherwise anomalous. These complaints must be judged solely by reference to the criteria set out in the PTWR. These are not claims of equal pay, nor can they be founded on general principles of fairness or on an objection to an allegedly arbitrary or anomalous pay regime. To succeed under the Regulations, the claimants must establish that they are part-time workers as there defined who have received less favourable treatment on the ground of their part-time status.

[41]It is clear from the way in which the agreed generic issues are framed, that the PTWR require a number of questions to be considered sequentially. The answer to a question is frequently determined to a significant extent by the way in which the question is formulated. I have therefore had to consider how each of the questions posed by the regulations should be correctly formulated. With the above matters in mind I turn now to consider the complaints using the framework of the agreed generic issues. Issue 1 Are or were the claimants part-time workers within the meaning of the PTWD?

[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.

[43]The regulation specifies two matters, and only two matters, which must be considered in order to determine whether a worker is ‘not identifiable as a full-time worker’: (1) pay wholly or partly by reference to time worked, and (2 the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract. Notably, the regulation does not include any such phrase as ‘in all the circumstances of the case.’ The tribunal’s consideration is therefore restricted to the two matters identified in regulation 2.

[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 Atherton’s and Mr Field’s cases; their work as recorder and judge of the CACD respectively 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 parttime 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.

[46]On the respondents’ analysis there is no need for any demarcation because, so it is argued, the section 9 duties and the recorder’s duties fall within the salaried time. There is only one ‘employment’, it is salaried and all duties performed are part and parcel of the judicial business to which the claimants are required to devote their working time.

[47]On the claimants’ analysis, however, it is necessary to split the work done by each claimant into(1) the ‘core’ duties of a salaried circuit judge or district judge (which, at the extremes, occupied Mr Atherton for approximately 90% of his working time, and Mr Barker for 15-20% of his working time), and

(2) the duties which each claimant is said to perform as a part-time worker in the High Court, CACD or Crown Court. The necessity for such a split was acknowledged in evidence by the claimants, who considered the means by which the different working time might be measured, recorded or accounted for, for example by filling in timesheets, by paying the higher rate for any day on which some of the ‘higher’ duties were performed, etc. The precise method by which such accounting could be done is not relevant here, but the need for such a split on the claimants’ case was clear to the claimants, as it is to me. The claimants’ analysis leads logically to the conclusion that the claimants are not full-time circuit judges or district judges, but part-time in that role also.

[48]In order to answer the question posed by Issue 1 it has been necessary for me to decide what period of time it is appropriate to consider. The respondents’ analysis looks at the claimants’ working time as a whole, as a year of 210 or 215 days for which they each receive their base salary and do whatever work can properly be asked of them. For example, Mr Andrew Allen says (Opening Submissions paragraph 41), ‘[Mr Athertons’] recorder sittings fell within his salaried time, during which time he was a full-time worker ..... Any suggestion that he was a part-time worker in relation to his recorder sittings in this period is inconsistent with the reality of the situation ...’ The like argument is made in relation to the circuit judge claimants also.

[49]The claimants’ analysis, by contrast, focuses attention on the period of time during which the alleged part-time work is done. For example, Mr Robin Allen says (Closing Submissions, paragraph 35), ‘[Mr Atherton’s] appointment as a recorder was free-standing and not in any way a consequence of his appointment as a DJ’, and at paragraph 46, Mr Atherton’s ‘statutory appointment as a DJ though originally expressed to be [full-time] was changed by his appointment as a recorder...’

[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.

[51]The Courts Act 1971, at section 21, states that qualified persons may be appointed as recorders ‘to act as part-time judges of the Crown Court’. I do not, however, think that that statutory description of the office of a recorder is determinative of the question I am considering. The question is not whether recorders hold a part-time appointment (which by statute they clearly do), but rather whether Mr Atherton, when sitting as a recorder, is a part-time worker as defined by regulation 2 (1)-(2). Since his retirement, the respondents accept that Mr Atherton, when sitting as a recorder, is a part-time worker. There has been no material change in the work of a recorder during all the time Mr Atherton has performed it, nor in the number of days he spends performing it. The only change has been in how he spends the rest of his working time: salaried 100%, then salaried 90%, then retired.

[52]A barrister may be appointed to the office of recorder and sit as a parttime judge of the Crown Court, where he is acknowledged by the respondent to be a part-time worker. If that barrister is then appointed as a district judge, and continues to sit as a recorder, then, on the respondents’ analysis, he must cease to be a part-time worker when sitting as a recorder. I ask myself by what mechanism that could happen; to which the respondents’ answer is, because he has become salaried in a different judicial role. However, I can see no support in the Regulations for the proposition that the part-time status of a worker is, or may be, dependent on what the worker does outside the alleged part-time working hours.

[53]All the circuit judge claimants described themselves as full-time circuit judges; they were paid 100% of the circuit judge’s salary. Mr Atherton described himself as a full-time district judge until 2011 when he became salaried part-time at 90%. That reduction in Mr Atherton’s salaried time is not relevant to the present consideration; his claim relates to his recorder sittings during his salaried time, whether 100% or 90%. 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. To the extent that it may be relevant to a consideration of the respondents’ custom and practice, I reject the possibility that the respondents’ custom and practice is in conflict with the statutory description.

[55]In answer to questions 1-3 posed in the agreed list of generic issues, and based on the analysis set out above, I set out my conclusions on the matters required to be considered under regulation 2 (1)-(2). 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, of the CACD or as a recorder. In those respective capacities, therefore, they were each part-time workers.

[57]On the question posed at 2 (ii) of the agreed list of generic issues, the position of High Court judges sitting in the CACD was not explored in depth before me. Sir Brian Leveson said, and I note from the statute, that High Court judges may be authorised to sit in the CACD pursuant to section 9 (1). I take that to be analogous to the basis on which circuit judges such as Mr Field were so authorised. However, I was not taken to the terms and conditions of High Court judges and therefore refrain from making a definitive finding on the question posed. However, for reasons which appear below, this does not ultimately affect the outcome. Issue 2 Are High Court judges comparable full-time workers in relation to circuit judges acting as judges of the High Court or the CACD?

[58]The respondents now concede that in relation to a recorder a full-time circuit judge is a comparable full-time worker; accordingly I so find. In relation to the circuit judge claimants the argument before me was centred on regulation 2 (4) (a) (ii), and the question whether the work of the claimants and their comparators was ‘the same or broadly similar’.

[59]In Matthews v Kent Fire Authority

[2006] ICR 365

Baroness Hale said, at paragraph 43 on page 379: ‘The sole question for the tribunal at this stage of the inquiry is whether the work on which the full-time and part-time workers are engaged is “the same or broadly similar”...... The work which they do must be looked at as a whole, taking into account both similarities and differences. But the question is not whether it is different but whether it is the same or broadly similar. That question has also to be approached in the context of Regulations which are inviting a comparison between two types of worker whose work will almost inevitably be different to some extent.” And at paragraph 44 she continued: ‘..... the extent to which the work that they do is exactly the same must be of great importance. If a large component of the 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”...... It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and parttimers spend much of their time on the core activity of the enterprise: judging in the courts or complaints handling in an ombudsman’s office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.’

[60]In Moultrie v Ministry of Justice

[2015] IRLR 264

, the EAT (Lewis J), considering Matthews, said at paragraph 29: ‘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.’

[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.

[64]The position of a circuit judge sitting in the CACD is different. Mr Field relies on a comparison between himself when sitting in the CACD and a High Court judge when also sitting in the CACD. He does not compare his work with that of a High Court judge in general. He accepts that there is a wide variation between his work in the CACD, circumscribed in the ways outlined earlier in this judgment, and the wide range of work carried out by a High Court judge. Mr Field is therefore constrained to compare his part-time work with that of a High Court judge only when the latter sits in the CACD. As I stated above, I can make no finding on whether a High Court judge sitting in the CACD is a part-time worker. But on either view, Mr Field’s claim encounters a problem.

[65]If a High Court judge sitting in the CACD is not a part-time worker then he is a full-time worker. But Mr Field acknowledges that the work of a full-time High Court judge is not an appropriate comparator for him. I agree; sitting in the CACD is one relatively small part of the work done by a High Court judge. It is not ‘the same or broadly similar’ to the work of a section 9 circuit judge sitting in the CACD. On the other hand, if a High Court judge sitting in the CACD is a part-time worker then he/she does not fulfil the criterion in regulations 2 (4) and 5 (1) that comparison must be between the claimant, a part-time worker, and a ‘comparable full-time worker’.

[66]Mr Robin Allen argues that under the PTWR or the PTWD a part-time worker claimant may compare himself with another part-time worker provided the latter works more hours than the former. I cannot accept that argument. In Advocate General for Scotland v Barton

[2016] IRLR 210

Lady Smith affirmed, at paragraph 32, ‘..... the PTWR do not provide protection for workers against less favourable treatment when compared to part-time workers who are not full-time but work longer hours than they do.’ In the earlier case of Bruno and Pettini (joined cases C-395/08 and C-396/08)

[2010] IRLR 890

, also relied on by Mr Robin Allen, the ECJ was specifically asked, at paragraphs 82-3, whether the Framework Agreement had to be interpreted as prohibiting discrimination between different forms of part-time work. In view of the answers it had given to the other two questions posed, the court said that it was unnecessary to answer that question. Nor can I find support for Mr Allen’s argument in clause 3 of the Framework Agreement. It appears to me, therefore, that the legal position is as set out in the Regulations, and as confirmed in Barton.

[67]If I am wrong about that matter I would in any event find that the work of Mr Field and that of a High Court judge sitting in the CACD are, for the reasons already set out, not the same or broadly similar. In answer to question 5 posed in the agreed list of generic issues, in my judgment, and for the reasons stated, a High Court judge, whether full-time or when sitting parttime in the CACD, is not a comparable full-time worker for Mr Field when sitting in the CACD pursuant to his section 9 authorisation. Issue 3 Was the less favourable treatment of the claimants on the ground that they were part-time workers?

[68]It is conceded by the respondents that each claimant was treated less favourably than his/her proposed comparator by being paid at a circuit judge’s or district judge’s rate when doing work for which a full-time High Court judge or circuit judge would be paid more. I consider here whether that less favourable treatment was on the ground that each was a part-time worker, bearing in mind both regulation 8 (6) and the more generous wording of regulation 5, namely the omission of the word ’solely’. Notwithstanding Scottish authority to the contrary, I consider that this tribunal is bound to follow the EAT in Sharma v Manchester City Council

[2008] ICR 623

and Carl v University of Sheffield

[2009] ICR 1286

, such that the claimants must show that part-time status was the ‘effective and predominant cause’ of the less favourable treatment.

[69]In the case of a section 9 (4) judge sitting as a deputy High Court judge, and acknowledged by the respondents to be a part-time worker, the respondents pay a daily rate based on the salary of a High Court judge. In the case of a section 9 (1) judge they do not. There is no requirement that all who share a characteristic have to suffer the same less favourable treatment: R (Coll) v Secretary of State for Justice

[2017] UKSC 40

. Thus the fact that some part-time judges, those appointed under section 9 (4), were not treated less favourably does not mean others, those authorised under section 9 (1), were not also. The comparison here is not between section 9 (1) and section 9 (4) judges, but between the claimants and their comparators. The fact that section 9 (1) judges are less favourably treated and section 9 (4) judges are not is relevant only in so far as it may shed light on the question under consideration: namely whether the less favourable treatment of the claimants than their comparators was on the ground of part-time status.

[70]There were two strands to Mr Masterson’s evidence about the respondents’ policy relevant to these claims. Firstly, the policy was to pay at the full High Court rate where the section 9 judge held no other salaried appointment. Thus section 9 (4) judges, who are ordinarily practitioners and not in receipt of a judicial salary, receive a daily rate for their High Court sittings based on a High Court judge’s salary. By contrast, section 9 (1) judges are paid their substantive salary and receive no extra remuneration for ‘sitting up’. The rationale for this policy, Mr Masterson said, was that section 9 sittings were ‘not expected to be substantial, in the sense that they will be an exceptional feature to the judge’s mainstay work.’ Mr Masterson was asked to consider the hypothetical possibility – which he could not imagine ever arising in practice – that a section 9 (1) judge might spend 100% of his/her time doing High Court work. Despite the rationale above, he said that in such circumstances the policy would be unchanged: only the substantive salary would be paid. A section 9 (1) authorisation was dependent, said Mr Masterson, on the judge’s appointment as a salaried circuit judge. He acknowledged that the office of recorder was a separate appointment.

[71]The second strand in Mr Masterson’s evidence related to the comparability of the work: section 9 judges, he said, echoing the evidence of Sir Brian Leveson, were paid less than their comparators because they did not carry out all of the functions of a High Court judge. The respondents would distinguish between, on the one hand, the situation in which someone acted up temporarily in the full sense, that is to say by doing all of the duties of a more highly paid position, in which case the higher salary would be paid for the relevant period, and, on the other hand, the situation of section 9 judges, who did not perform all of the functions of a High Court Judge.

[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. Additionally, Mr Atherton gave evidence that he was aware of a salaried crown prosecutor who received no extra remuneration for sitting as a recorder.

[74]This conclusion was reinforced by correspondence between Mr Atherton and the respondents in which Mr Atherton sought, pursuant to regulation 6, an explanation for the policy as it related to him, and requested a statement of reasons for his less favourable treatment. He received responses reaffirming the respondents’ policy that salaried judges receive no additional payment for sitting in another judicial capacity, and confirming that he would be paid a full fee for sittings undertaken in his non-salaried time.

[75]Mr Andrew Allen elaborated this line of argument in his Closing Submissions (paragraph 106). The claimants were paid as they were because ‘they hold full-time salaried offices, in relation to which they were required to devote their working time to the business of the courts ... The respondents are entitled ... to deploy the claimants into different courts ... [and] ... they continued to be salaried circuit judges and their work under section 9 forms part of their salaried work.’ This argument did not depend on a distinction between the duties of section 9 (1) judges and High Court judges, but simply on the former holding some other salaried office. The same argument was applied by analogy to Mr Atherton.

[76]Here too, it is necessary to consider how the relevant question should be formulated. Mr Robin Allen urged me to ask not why the claimants were paid as they were, but rather to ask why they were less favourably treated than their comparators. To that question, he suggested, there was one and only one obvious answer. A full-time High Court judge was paid more for doing work comparable to that of the section 9 judges because he was fulltime; a full-time circuit judge was paid more for doing work comparable to that of a recorder because he was full-time. If one asks, Mr Allen suggested, what would have been the position if the claimants worked full-time in the High Court or Crown Court, again the answer would be obvious. The reason for their less favourable treatment was therefore their part-time status.

[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 parttime 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, a matter to which Mr Masterson returned numerous times in his evidence – 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. Issue 4 Is the less favourable treatment of the claimants justified on objective grounds consistently with the PTWR and the PTWD?

[80]The respondents rely on the aims of(i) Fair and flexible deployment of judges to courts and tribunals whose office-holders may be paid at rates which are different (higher or lower) from theirs;

(ii) Fair allocation of resources; and

(iii) Reflecting the difference in hierarchy and the differences in full-time roles as between different judicial roles.

[81]It was common ground that if the claimants were successful the respondents, or government, would have to take some corrective measures. Mr Andrew Allen (Closing Submissions paragraph 118ff.) identified three possibilities:(1) recruit more High Court judges;

(2) increase the work of existing High Court judges at the cost of increased waiting times;

(3) reorganise jurisdictional boundaries between the county court and High Court. A fourth possibility, touched on by Mr Allen in paragraph 119 is to pay section 9 (1) judges for the High Court work they do, either on a detailed time basis, or by a daily rate, or by a lump sum. It is not for this tribunal to propose such corrective measures, but to examine whether any of the matters put forward constitutes objective justification.

[82]In O’Brien v Ministry of Justice

[2012] ICR 955

the CJEU said, at paragraph 64 ‘the concept “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 ... 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’. In Ministry of Justice v O’Brien

[2013] ICR 499

the Supreme Court added, at paragraph 45, that ‘it is not enough for a member state to provide for the difference in treatment in its law (or enforceable collective agreement)’. In my judgment the same applies to the terms and conditions of employment on which a worker is engaged; thus, it is not enough for the respondents to point to the claimants’ terms and conditions if those contain unlawfully discriminatory provisions. The SC also restated, at paragraph 45, in slightly differing terms, ‘the familiar principles applicable to objective justification: the difference in treatment must pursue a legitimate aim, must be suitable for achieving that objective, and be reasonably necessary to do so.’ At paragraph 48 the SC said ‘the court is likely to treat with greater respect a justification for a policy which was carefully thought through by reference to the relevant principles at the time when it was adopted ... it is difficult for the ministry to justify the proportionality of the means chosen to carry out their aims if they did not conduct the exercise of examining the alternatives or gather the necessary evidence to inform the choice at the time.’

[83]As expressed by Mr Andrew Allen (Closing Submissions paragraph 115) the respondents’ policy is that ‘salaried judicial office-holders are paid at their salaried rate for work undertaken in their salaried time.’ It is that policy and practice which the respondents seek to justify; and for that justification they rely on the three matters set out above.

[84]Mr Masterson’s evidence was that the respondents’ policy had evolved over time. It seems probable that it dates at least as far back as the SCA 1981. There was no evidence before me that the respondents had revisited or reconsidered its policy in the light of the PTWD or of the PTWR. I had the strong impression that practices, for example the difference in pay between section 9 (1) and 9 (4) judges, had grown up over time with no subsequent thought being given to the rationale for them. When Mr Atherton asked for an explanation of his pay as a recorder he received a restatement of the policy. I could only take Mr Masterson’s evidence that he had not read the judgment in Keegan, and that he was told by a civil servant that it was not relevant, as indicative of the respondents’ lack of concern about the questions raised. It is clear, however, that the respondents’ counsel in Keegan thought that decision was relevant also to England and Wales.

[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.

[90]In answer to question 9 posed in the agreed list of generic issues I find that the less favourable treatment of the claimants is not justified on objective grounds.

Conclusion

[91]My findings in summary are as follows. 1 When, pursuant to their authorisations under section 9(1) of the SCA 1981, Mr Barker, Ms George and Mr Everall act or acted as judges of the High Court, and Mr Field acts as a judge of the CACD, and when Mr Atherton sits as a recorder, they are or were each part-time workers within the meaning of regulation 2

(2) PTWR. 2 In relation to Mr Barker, Ms George and Mr Everall, a full-time High Court judge is a comparable full-time worker, and in relation to Mr Atherton a full-time circuit judge is a comparable full time-worker within the meaning of regulation 2 (4) PTWR. In relation to Mr Field a High Court judge, whether fulltime or part-time, is not a comparable full-time worker within the meaning of that regulation. 3 Mr Barker, Ms George, Mr Everall and Mr Atherton were each treated less favourably than a comparable full-time worker on the ground that they were each part-time workers, contrary to regulation 5 (1) PTWR. Mr Field was not treated less favourably than a comparable full-time worker. 4 The less favourable treatment of Mr Barker, Ms George, Mr Everall and Mr Atherton is or was not justified on objective grounds.

The hearing

[92]Each of Mrs George, Mr Farquhar and Mr Bugg told me that section 9(1) work in the family jurisdiction could arise in two ways:(1) cases proceeding in the Family Court that for reasons of complexity or the significance of the issues or which raised issues of deprivation of liberty should be tried by a judge at High Court level (either a substantive High Court Judge or a section 9(1) judge) or

(2) cases proceeding in the Family Division of the High Court because they engaged the inherent jurisdiction of the High Court such as wardship or were required by the Family Procedure Rules such as international child abduction. They accepted that there were cases which were always dealt with by a substantive High Court Judge, such as financial remedy cases involving ultrarich individuals, life support cases or issues involving radicalisation. They observed that it could happen that matters requiring a judge of High Court level such as deprivation of liberty and more straightforward questions that were suitable for the Family Court arose in the same hearing, meaning the judge effectively had to change jurisdiction mid-hearing.

[93]As Mrs George explained in evidence, a section 9(1) authorisation did not in itself confer on a Family Court Circuit Judge jurisdiction to act as a section 9(1) judge in any particular case. The practice in the Family Court and Family Division was that judges were required to obtain the permission of the Family Division Liaison Judge, who is always a substantive High Court Judge, to act under section 9(1). This was where it appeared that the facts or circumstances of the case engaged the jurisdiction of the Family Division or the case remained in the Family Court but was of such seriousness as ordinarily to require a judge of High Court level to hear it, in accordance with the Public Law 25 of 63 and Private Law Schedules covering allocation of cases between different levels of judges and Presidential Guidance issued by the President of the Family Division from time to time. I saw in the bundle several examples of emails between the claimant Circuit Judges and Family Division Liaison Judges about the allocation of work which required or might require a judge at High Court level to hear it and whether they could or should be allocated it to hear under section 9(1). Mr Barker

[94]Mr Barker was appointed as a full-time Specialist Senior Circuit Judge (Chancery) on 27 October 2010, sitting at the Birmingham Civil and Family Justice Centre. At the same time he received separate authorisations under section 9(1) to act as a High Court Judge in(1) the Chancery Division and

(2) the Mercantile Court and Technology and Construction Court. These now form part of the BPC, and where I describe the work Mr Barker undertook under these arrangements, I shall, unless the context otherwise requires, describe them as BPC work. In April 2012, he was also authorised to sit in the Administrative Court. He retired in 2020.

[95]Mr Barker’s working arrangements, and the division of his work between section 9(1) and Circuit Judge duties, were substantially different to those of Mrs George, Mr Farquhar and Mr Bugg as Family Circuit Judges, and so I must describe then in more detail.

[96]Mr Barker’s undisputed evidence, which I accept, is that he sat in his section 9(1) capacity for about 80-85% of his annual sitting commitment of 210 days and as a Senior Circuit Judge for the remainder. He divided his time sitting as a section 9(1) judge between London and Birmingham.

[97]Mr Barker devoted at least 30 days per year to BPC work as a section 9(1) judge in London. In practice, in some years he did more than this; I accept his evidence that between 2010 and 2020, he sat for more than 300 days in London as a section 9(1) BPC judge, generally in fortnightly blocks.

[98]In London, Mr Barker undertook a wide range of trials, applications, and appeals. These covered business, company law, wills and administration of estates, trusts, corporate insolvency and intellectual property but not patents. He had no involvement in the allocation of work to him. Most of the cases he heard were category B. He agreed that Category A cases were relatively rare in London and very rare in Birmingham and might be lengthy, of high financial value or exceptional complexity or public importance.

[99]Mr Barker provided, at paragraphs 123-174 of his first witness statement, numerous examples of cases which he undertook as a section 9(1) judge. It is unnecessary to refer to these individually in this decision; I accept that they show Mr Barker regularly and routinely undertaking complex and difficult work at High Court level, although not the most weighty cases which were categorised as grade A. In that regard, Mr Barker accepted that substantive High Court Judges undertake category A cases of great complexity, public 26 of 63 importance or difficulty and whilst the number of such cases is small, they may be extremely lengthy and inherently unsuitable for section 9(1) judges for whom section 9(1) work is mot their primary activity. He observed, however, that by definition all of the section 9(1) work he did was work suitable to be done by a High Court Judge.

[100]Mr Barker accepted also that substantive High Court Judges have leadership and management responsibilities which he did not have as a section 9(1) judge (although he did have them in his role as Senior Circuit Judge). The Presiding Judges and Deputy Presiding Judges who have leadership responsibility for circuits are always High Court Judges. The Supervising High Court Judge for the Midlands Circuit had responsibility for BPC work across the whole circuit and as on-site lead judge for BPC matters at Birmingham, Mr Barker reported to him.

[101]Each of Mrs George, Mr Farquhar, Mr Bugg and Mr Barker told me in evidence that they always regarded themselves as full-time Circuit (or Senior Circuit) Judges holding one or more section 9(1) authorisations. Mr Barker agreed that he would not describe himself as part-time; he perceived himself to be a fulltime judge, and a full-time salaried Senior Circuit Judge with two section 9(1) authorisations.

[102]Each of the claimant Circuit Judges agreed that flexibility of deployment was a feature of assisting the business of the courts, and that their terms and conditions did not limit them to the County Court. Mr Barker told me that when he applied for the role of Senior Circuit Judge, section 9(1) authorisation was “part of the package”, in that he needed the authorisation for the Senior Circuit Judge role that he applied for.

[103]It will be apparent from the foregoing, and I find, that the extent of the section 9(1) duties undertaken by the claimant Circuit Judges varied considerably. For Mr Barker, such duties were the majority of his work and required of him from the outset as part of the Senior Circuit Judge for which he applied; for Mrs George and Mr Bugg less so but still significant; and for Mr Farquhar substantially less so. Findings of fact - Mr Atherton

[104]Mr Atherton was appointed as a salaried District Judge on 16 June 2000, initially assigned to Leeds County Court before transferring to Newcastle County Court in July 2001. He sat full-time (a sitting commitment of 215 years per year) until 1 November 2011 when he reduced to a 90% fractional arrangement. He sat across the range of civil and family jurisdictions in the High Court and Family Court, with a specialism in technology and construction. He sat about 80% at Newcastle and 20% in other courts in the region. He was the Lead Judge for Chancery and Technology and Construction in Newcastle. He retired on 26 August 2019.

[105]Mr Atherton was appointed as a Recorder sitting in crime on 29 May 2002. His letter of appointment (3037) dated 6 June 2002 from the Lord Chancellor’s 27 of 63 Department stated that his appointment was made under section 21 of the CA, which, by way of reminder, states: “(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….

[106]Mr Atherton subsequently obtained tickets to sit as a Recorder in civil, Technology and Construction, private and public family and serious sexual offences. He continues to sit as a Recorder since retiring from his salaried role. From November 2011, he undertook Recorder sittings within both his 90% salaried time and his 10% non-working time. His appointment as Recorder was separate to his salaried District Judge appointment and he did not undertake any work in crime as a District Judge whereas crime was a substantial part of his work as a Recorder.

[107]As a Recorder, Mr Atherton spent 18 days between December 2002 and April 2003 on training and induction into the crime jurisdiction. Thereafter until November 2011 he sat as a Recorder on 277 days and on 442 days in total during his period of service as a District Judge. He arranged his Recorder sittings some months in advance (although he did occasionally sit at short notice) and the sittings were booked out of his District Judge diary (and so reduced the days on which he sat as a District Judge). The sittings counted towards both his sitting commitment of 215 days as a District Judge and 20 days as a Recorder.

[108]Mr Atherton did not receive any additional remuneration beyond his salary as a District Judge for his Recorder sittings undertaken in his salaried time. Thus he was not paid for such sittings pro rata to the remuneration of a salaried full-time Circuit Judge as a Recorder without a salaried judicial appointment would have been paid. He was paid pro rata to the Circuit Judge rate for his sittings outside his salaried time.

[109]Mr Atherton accepts that he was aware that he would not receive additional remuneration for his Recorder sittings. his Memorandum of Conditions of Appointment and Terms of Service stated (in its 1998 and 2009 editions) that: “if a District Judge wishes to sit as a Recorder, and is so appointed, he will be expected to sit for a minimum of 20 days in that capacity…No extra remuneration in addition to his salary as a District Judge may be claimed in those circumstances.”

[110]Mr Atherton also accepts that his terms of appointment as a Recorder stated this: “The daily fee is the salary of the full-time office holder divided by 220 on the basis that the full-time office holder is required to sit 220 days per annum. …. Full-time holders of judicial office receive no remuneration for any part-time office held concurrently irrespective of how much time is devoted to sitting in a part-time capacity or when party-time sittings are undertaken.” 28 of 63 Relevant law, deliberations and conclusions

[111]This concludes my findings of fact. I shall set out the relevant law, my conclusions and the reasons for them by reference to the Agreed Generic List of Issues. I shall refer to counsel’s submissions as I do so.

[112]It will emerge that my conclusions and decision on Issue 1 are determinative of the claims. It is strictly unnecessary, therefore, to decide Issues 2,3 and 4. However, to assist the claimants in these and the stayed cases, I shall make findings on the remaining issues based on assumptions which I will identify.

[113]I begin with Issue 1, and set it out again for ease of reference. 1. PART TIME WORKERS1.1 Are the Claimant Circuit Judges (or were the Claimant retired Circuit Judges) parttime workers within the meaning of the Part-time Workers Directive (‘PTWD’) and/or the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (‘PTWR’) when undertaking work in the High Court pursuant to their authorisation under s9(1) Senior Courts Act 1981 (‘the SCA’)?

1.2 Was the Claimant retired District Judge a part-time worker within the meaning of the PTWD and/or the PTWR when undertaking work as a Recorder during his salaried District Judge time? The Respondent accepts that he was a part time worker from 1 November 2011 when he went down to 90%.

[114]By way of preliminary observation, the position of the claimant Circuit Judges and of Mr Atherton is not necessarily the same in relation to this or the other issues and I shall, here and elsewhere, consider their positions separately.

[115]Also by way of preliminary observation, the Employment Appeal Tribunal observed in Engel v Ministry of Justice

2017 ICR 277

at paragraph 18: “the purpose of the legislation is not to redress any and all injustices that may exist; it is to redress the less favourable treatment of part-time workers if and only if that treatment occurs because they are part-time workers”.

[116]Further, Lord Carnwath JSC commented in Miller v Ministry of Justice

2019 UKSC 60

as to the difficulties of applying the PTWR to judicial office holders: “…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.” (paragraph 31).

[117]I have these observations clearly in mind in these cases, and in deciding Issue 1 my focus will be on the requirements of regulation 2 in the particular context 29 of 63 of the working arrangements for judicial office-holders in the position of these claimants. I set out regulation 2 again for ease of reference: “2. – Meaning of full-time worker, part-time worker and comparable full-time worker(1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.

[118]Although counsel directed me to provisions of the PTWD and the Framework Agreement underpinning it, especially clauses 3 and 4 of the Framework Agreement, it is necessary for me to say only that clause 3 defines a part-time worker as: “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”.

[119]In Dodds at paragraphs 150-159 the Employment Appeal Tribunal held that there was no inconsistency between the PTWD and regulations 2(1) and (2) as to the definition of part-time work, and I will set out my conclusions only by reference to the PTWR, but interpreting and applying the PTWR consistently with the PTWD.

[120]Following O’Brien v Ministry of Justice (No 1)

[2013] UKSC 6

, it is not disputed that judges are workers for the purposes of the PTWR.

[121]It has also not been disputed before me that the claimants are paid wholly or in part by reference to the time they work. All judges, including Circuit Judges and District Judges are required by their terms of appointment to devote a specified minimum number of days per year to their judicial work9. This was accepted before the original Employment Tribunal and in the Employment Appeal tribunal in Dodds.

[122]The claimants are required to prove that they are or were part-time workers as defined in regulation 2(2). It is important to understand the claimants’ case in this regard. Ms Crasnow KC says at paragraph 14 of her closing submissions that regulation 2(2) only obliges me to consider the work done on the days which are the subject of the claims. This is the work for which comparison is required with full-time High Court judges. Whilst she accepts, at paragraphs 17 9 At paragraph 113 of the decision in Dodds, the Employment Appeal Tribunal commented on the disconnect in the decision of the original Employment Tribunal, which found that the claimants were paid by reference to the time worked for their full-time work but did not address whether the same could be said for the work asserted to be part-time. There may be an answer to this, but I heard no argument on the point and it is in the event immaterial to my decision, and I say no more about it. 30 of 63 and 45(i), that the Tribunal should focus on the full picture, she says that the focus should most particularly be on the sitting-up role performed by each claimant which gives rise to the claim. The question is whether they are identifiable according to their normal hours of work, not whether the respondents so identified them.

[123]Ms Crasnow KC articulates the claimants’ case at paragraphs 27, 45(iii) and 46 of her closing submissions. This is that each claimant had two separate, parttime appointments rather than one full-time appointment. They had separate judicial roles as Circuit Judges and section 9(1) judges or, in Mr Atherton’s case, as District Judge and Recorder. There was no likelihood of confusing the two roles both of which were in reality undertaken part of the time. She says that having regard to the duties in the separate roles, the differences in job descriptions, the fact of the appointments being something the judge must agree to, the differences in place of work and the need to undergo a separate recruitment process, the reality of their position is that after they took up their appointments as section 9(1) judges or as Recorder, they had two part-time posts. Given that, in their section 9(1) or Recorder roles, the time they worked or their normal hours of work were less than their full time comparators.

[124]The respondents deny that in carrying out their section 9(1) or Recorder duties during their salaried time, the claimants had separate part-time positions. They say that the claimants’ work was all carried out within their salaried positions and thus the claimants were not part-time workers, whether assessed under the PTWR or the PTWD.

[125]At paragraph 27 of Dodds, the Employment Appeal Tribunal said this: “A part-time worker is defined by reference to what they are not; they are a worker who is not a full-time worker. Counsel have been unable to identify any caselaw that bears directly on the issues of law that I have to resolve in relation to [this]. It appears that in the vast majority of cases there has been no dispute over whether the claimant is a parttime worker for the purposes of the PTWR. In their section on part-time workers, the authors of Harvey on Industrial Relations and Employment Law observe of the identification of a part-time worker by reference to custom and practice: “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”. However, perhaps prophetically, they continue: “But there are some questions which will one day need answering” (page 1010)..”

[126]Of course I will have particular regard to the decision in Dodds, which is binding upon me, on the requirements of regulation 2(2),. But I have also asked for, and received, counsel’s submissions on the recent Employment Appeal Tribunal decision in Scottish Ministers v Johnston

[2024] EAT 121

, in which the same or similar issues appear to arise.

[127]The claimant in Johnston was a salaried Sheriff in the Scottish Courts who also held a position “sitting-up” as a Temporary Judge of the Court of Session. She brought a complaint under the PTWR that she had been subjected to unlawful 31 of 63 treatment as a part-time worker when she was paid less pro-rata for her sittings as a Temporary Judge than full-time salaried judges of the Court of Session.

[128]The Employment Tribunal upheld her claim but the Employment Appeal Tribunal (Mr Justice Swift) overturned the decision. The Employment Appeal Tribunal found that:(a) the conclusion that by reason of her appointment as Temporary Judge, the claimant held concurrent part-time appointments was inconsistent with the provisions of section 20B of the Judiciary and Courts (Scotland) Act 2008;

(b) in any event, on the evidence it had not been open to the Employment Tribunal to conclude that, by conduct, two part-time employment relationships had come into existence; and

(c) in reaching the conclusion that two such relationships had come into existence, the Employment Tribunal had misapplied regulation 2(2) of the PTWR by failing to have regard to the employer's custom and practice.

[129]Counsel agree, and I accept, that Johnston is not binding upon me as it turned on the meaning and effect of section 20B(7) of the Judiciary and Courts (Scotland) Act 2008, a provision that does not appear in section 9 of the SCA. But they disagree on the extent to which I should regard any part of the decision as persuasive and take it into account in my decision. Ms Crasnow KC suggests that I should not do so, in the same way as Mr Justice Swift in Johnston did not regard Dodds as material as it arose out of the different legislation applying in England and Wales. Mr Allen KC points to what he regards as the obvious similarities in the cases and that some of the conclusions in Johnston did not depend on the wording of the Scottish legislation and are applicable in these proceedings.

[130]In particular, Mr Allen KC highlights paragraphs 35 and 36 of Johnston: “35. But in any event, and even if the statutory provisions were to be disregarded, the Tribunal was wrong in law to draw the inference it did that two part-time employment relationships had come into existence. Had the situation before the Tribunal depended on determining the modification of contractual provisions, the question would have been whether the facts gave rise to a necessary inference that a single contract had been replaced by two part-time contracts. Even though the present circumstances concern the terms on which an office is held rather than the terms of a contract, the approach and standard required should be no different. It was for the Tribunal to be satisfied that the necessary inference to draw from the practical arrangements made to allow the Claimant to sit as a Temporary Judge, was that two employment relationships had come into existence. 36. Applying that standard, the evidence in this case was not such as to permit that inference to be drawn. Some matters did change following the Claimant's appointment as Temporary Judge. When sitting as a Temporary Judge she had a different place of work, she conducted the judicial work of a of a different jurisdiction. But other important matters did not change. There was no change in the identities of parties to the employment relationship, and there was no change in the arrangements for remuneration. Some weight must also attach to the documents referred to by the Tribunal in its "Additional Findings of Fact": set out above at paragraph 31. Those documents support the conclusion that acting as a Temporary Judge can be one of the functions of those appointed to the office of Sheriff. In these circumstances it would have been open to the Tribunal to conclude that the terms on which the Claimant held the office of Sheriff had changed to the extent necessary to permit her, from time to time, to sit as a Temporary Judge of the Court of Session. However, the matters 32 of 63 identified by the Tribunal (for example at paragraph 81 of the judgment, set out above at paragraph 9) are not, capable of supporting a necessary inference that a new, second employment relationship had come into existence. Those changes were, at the least, equally consistent with the conclusion that the existing, single, employment relationship between the same parties remained in force, albeit on varied terms. There was no necessary conclusion that a second, concurrent, employment relationship had been created. The Tribunal's reasoning at paragraphs 84 and 85 of the judgment (above at paragraph 8) recognised that there was no necessary inference that a second employment relationship had come into existence. In the premises, the Tribunal's conclusion that a separate, second employment relationship had arisen was wrong in law. For these reasons Grounds of Appeal 2 and 3 also succeed.”

[131]Johnston is not binding upon me, and I must treat the decision with caution. Underpinning the judgment is the decision about the meaning and effect of section 20B(7) of the 2008 Act which states that the appointment of an individual as a Temporary Judge does not affect any appointment of the individual as a sheriff, a provision which does not exist or have an equivalent in the SCA. But I have noted(1) the observations at paragraph 24 about the significance of the words “act as” in the legislation;

(2) the contents of paragraphs 35 and 36, quoted above, about the creation of two separate parttime employment relationships and

(3) paragraph 37 as to the requirement in regulation 2(2) of taking the employer’s custom and practice into account. I shall have regard to these findings, whilst not being bound by them, in my decision.

[132]Returning then to Dodds, at paragraph 114 the Employment Appeal Tribunal said this: “The second component of regulation 2(2) requires the tribunal to determine whether the worker “is not identifiable as a full-time worker”. In conducting this assessment, the tribunal is to “have regard” to the “custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract”. I do not consider that the wording of regulation 2(2) confines the tribunal to only having regard to the employer’s custom and practice. If that were the intention, the regulation could have said so. To require tribunals to “have regard” to a matter, does not, of itself, mean that they should exclude consideration of other matters that bear on whether the worker is not identifiable as a full-time worker. In addition, there is force in Mr Robin Allen’s point that requiring the employer’s custom and practice to be decisive on this point would not accord with the PTWD provisions. However, the employer’s custom and practice is the only consideration that is expressly mentioned in the regulation and, on the face of it, it is a highly relevant factor, albeit in a context where the question is whether the worker is “identifiable” as a part-time worker, not whether they are “identified” as such by the employer.”

[133]This means that in considering the question posed by regulation 2(2), which is whether, having regard to the custom and practice of the respondents in relation to workers employed by the respondents under the same type of contract, the claimants are not identifiable as full-time workers, I must consider the totality of the working arrangements, including (but not concentrating on) the time alleged by them to be or have been part-time work. This exercise is not confined to consideration of custom and practice, although that is an important factor. The issue is whether the claimants were not identifiable as full-time workers. As I have said, whilst accepting that I must look at the totality, Ms Crasnow KC has invited me to have particular regard to the work asserted to be or have been part-time work, but agreeing with Mr Allen KC, I will not 33 of 63 approach the exercise in that way on this issue; I will consider all aspects of the relationship and the respondents’ custom and practice and any other relevant factors relating to it as a whole.

[134]I am reinforced in this view by Dodds, where the Employment Appeal Tribunal further held that: “120 …. In my judgment, the tribunal could only decide whether the claimants had a single full-time employment (as the respondents contended) by analysing the respondents’ custom and practice in respect of their salaried roles. ….. 123. … As I have observed at paragraph 27 above, a part-time worker is defined in a negative way by reference to what they are not; a worker who is not identifiable as a full-time worker. Accordingly, where the point is in issue and it is said that the worker is in fact a full-time worker at the time when they are undertaking the work in question, the issue can only be resolved by considering that alleged full-time role, having regard to the employer’s custom and practice in respect of it, as well as to the alleged parttime working. As the EJ recognised (paragraph 45, Reasons) and both parties accept, the claimants could not be both full-time and part-time workers during the same periods of time; if they were full-time workers when they were sitting-up then they failed on Issue 1.”

[135]I begin my considerations with the Claimant Circuit Judges. They are Circuit Judges or a Senior Circuit Judge who are authorised under section 9(1) of the SCA to “sit up” in the High Court, as I indicated in the introductory section of this judgment. It is not disputed that they are employed by the respondents on the same type of contracts as other judges sitting up in a more senior capacity.

[136]I set out the relevant provisions of section 9 at paragraph 12 above. For ease of reference, however, I will set them out again here. Section 9 relevantly provides: 9. Assistance for transaction of judicial business (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 to section 24 of the 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 34 of 63 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. (6) A person shall not by virtue of subsection (5)- (a) be treated as a judge of the court in which he is acting for the purposes of section 98(2) or of any statutory provision relating to- (i) the appointment, retirement, removal or disqualification of judges of that court; (ii) the tenure of office and oaths to be taken by such judges; or (iii) the remuneration, allowances or pensions of such judges; or (b) …”

[137]I agree with Mr Allen KC that the language used throughout section 9 is significant (although as Ms Crasnow KC reminds me, it is not decisive of the issue: an employer cannot determine status by the label it uses).

[138]The words used are “act as”, “competent to act”, “acting”. I agree with the opinion of the Employment Appeal Tribunal at paragraph 104 of Dodds that “act as” tends to indicate that at the material time a Circuit Judge remains a Circuit Judge, but that he or she has the powers and authority of a High Court judge; without that, the judge would not be able to carry out the judicial work of that jurisdiction in any meaningful sense when they sat in the High Court. Thus they are “acting as” judges of the High Court, but without holding an appointment as such. The word “assistance” used in the heading of section 9 is also consistent with this; this does not suggest a substantive role.

[139]Section 9(5) makes clear that when the judge is sitting under section 9(1), they may exercise the “functions” of a High Court judge. As observed in Dodds, this is not intended to impact upon the judge’s terms and conditions, as reinforced by section 9(6), which provides that “acting as” does not extend to the terms and conditions of the judges of “that” court, which is to say the court in which the judge is sitting up. All of this indicates authorisation to act, rather than a separate appointment (and this is consistent with the wording of Mrs George’s letter mentioned above, which uses the word “authorisation”).

[140]This is in distinction to section 9(4) which specifically speaks of “appointment” of Deputy High Court Judges, most section 9(4) judges would not hold an existing salaried judicial appointment. Ms Crasnow KC says that the distinction between authorisation and appointment is insignificant; she says that on occasions, the terms are used interchangeably. But in my judgment, the clear 35 of 63 tenor of section 9(1) is of judges “acting as” High Court judges and not of a separate and distinct appointment as the claimants contend.

[141]Ms Crasnow KC says at paragraph 20 of her closing submissions that section 9(6) means no more or less than that judges cannot claim the right to be paid the same as High Court Judges by virtue of the status conferred by section 9(5). This does not exclude the matters set out in section 9(6) being conferred by another enactment such as the PTWR. As I understand it, the respondents do not suggest that section 9(6) excludes the PTWR; but the PTWR do not as such confer the right to be paid as High Court Judges.

[142]The meaning of section 9(6)(a)(iii) is clear – section 9(5) does not extend to the remuneration of section 9 judges. This applies to section 9(1) and 9(4) judges alike but I do not agree with Ms Crasnow KC that the position of section 9(4) judges is anomalous. Their remuneration is specifically dealt with by “another enactment” as envisaged by section 9(6), namely by section 9(8), and I note that there is no similar provision about the remuneration of section 9(1) judges when acting as such. Ms Crasnow KC suggests that there is no need for such a provision as the position of Circuit Judges sitting-up is governed by the remuneration provisions in section 18(5) of the CA, but in my judgment that extends only to remuneration as Circuit Judges and does not confer any right to additional remuneration as section 9(1) judges (and in any event no allowance has been determined for section 9(1) judges as section 18(5) requires).

[143]Ms Crasnow KC and Mr Allen KC each direct me to section 16(1) of the CA. This provides for the appointment of Circuit Judges, and states that Circuit Judges may serve not only in the Crown Court and county courts but may also “carry out such other judicial functions as may be conferred on them under this or any other enactment”.

[144]Mr Allen KC says at paragraph 71 of his closing submissions that section 9(1) is an “other enactment” as referred to in section 16(1), showing that sitting in the High Court under section 9(1) authorisation is consistent with the claimant Circuit Judges’ appointments and statutory role. Ms Crasnow KC submits at paragraph 28 of her closing submissions that the provision does not mean that section 9(1) functions are necessarily part of the claimant Circuit Judges’ appointments but is permissive in the sense that there is no bar on such functions. She points out that Circuit Judges are not obliged to apply for or accept section 9(1) authorisations and must undergo a competitive recruitment process to be admitted to the pool of judges from which requests will be made.

[145]The Employment Appeal Tribunal held at paragraphs 129-130 of Dodds: “… the terms of appointment of a circuit judge contemplate that the judge will not only serve in the Crown Court and the county courts but “carry out such other judicial functions as may be conferred”; and a district judge’s siting days requirement is in respect of “judicial business”. When a worker carries out duties that are contemplated by their terms and conditions, it does not follow, simply because those duties are infrequent or peripheral or in some respects distinct to their central responsibilities, that they are no longer acting in that role and are instead working in a separate part-time 36 of 63 role. There are many situations where workers are required to perform tasks which are ancillary to their main duties but are a part of their contractual role, including (but not limited to) temporarily performing some work that is routinely carried out by a higher paid employee. It would be a most surprising situation if this in itself led to the conclusion that the worker was in fact undertaking two (or more) part-time jobs rather than one full-time role.”

[146]The correct interpretation of section 16(1), in my judgment, is that Circuit Judges by virtue of their office may undertake other judicial activities conferred upon them. Whilst I accept that, as Ms Crasnow KC says, not all Circuit Judges will apply for or be successful in securing a section 9(1) authorisation, when they do have such an authorisation, the work falls within the scope of section 16(1) and does not support a conclusion that a separate part-time appointment is created.

[147]None of this is conclusive in itself, and as required by regulation 2(2), I turn to consider the respondents’ custom and practice and any other relevant factors. As I have already said, this requires consideration of custom and practice across the whole of the arrangements between the respondents and the claimant Circuit Judges and others employed on the same type of contract, both as to their Circuit Judge duties and their alleged part-time work as section 9(1) judges.

[148]Counsel have not raised any question about the type of contract on which other judges were employed, and I have found that the arrangements for the claimant Circuit Judges to undertake section 9(1) duties were typical of section 9(1) arrangements across the salaried judiciary. At paragraph 138 of the decision in Dodds, the Employment Appeal Tribunal identified examples of relevant custom and practice:(a) the terms and conditions of the claimants’ respective appointments (as Circuit Judges and District Judge);

(b) sitting-up days were treated as part of the annual sitting commitment of the salaried roles;

(c) the respondents’ undisputed evidence that the general policy was that judicial sittings falling within salaried time were remunerated at the rate applicable to that salaried office;

(d) this policy was, for example, applied to section 9(4) judges who already held salaried office;

(e) in relation to the claimant Circuit Judges, there was no clear demarcation between their circuit judge duties and their section 9(1) duties; for example, the undisputed evidence from Mrs George was that she would sometimes switch between the two jurisdictions several times during a single court day;

(f) the claimant Circuit Judges’ perception that their salaried roles were fulltime ones. 37 of 63

[149]The Employment Appeal Tribunal did not suggest that those were the only aspects of the respondents’ custom and practice to be taken into account. With that reminder in mind, I turn to counsel’s submissions on these and any other relevant factors.

[150]Ms Crasnow KC says that the claimant Circuit Judges’ primary position is that the evidence demonstrates a lack of any reliable custom and/or practice. I found this surprising as it is not disputed that the respondents’ long-running practice was that no additional remuneration was paid where salaried judges undertook additional responsibilities at a more senior and higher-remunerated level, including Circuit Judges sitting up under section 9(1), and such sittings counted towards the judge’s sitting commitment in their primary role. It appeared to me that Ms Crasnow KC’s contention was directed towards the lack of evidence about the reason for the policy, rather than to its existence, which seemed to me to be unarguable.

[151]As to the terms and conditions of the respective roles, Ms Crasnow KC says that they are separate and distinct; no Circuit Judge was obliged to apply for a section 9(1) authorisation; there was a competitive recruitment process for the pool. She says that “judicial business and the business of the courts” have more than one possible meaning. She contends that the section 9(1) role for which application must be made is different to roles for which Circuit Judges are eligible ex officio such as sitting in the Upper Tribunal.

[152]As to section 9(1) sittings forming part of sitting commitments, Ms Crasnow KC says that the respondents justify this on the basis this is how it has always been done, rather than as a result of any thought or policy. She says the same about the respondents’ practice of not paying additional remuneration for “sitting-up”.

[153]Ms Crasnow KC says that a conclusion that there was no clear demarcation between Circuit Judge and section 9(1) duties is not justified by the evidence. Mr Barker and Mr Bugg were booked for specific periods. Further, in the Family Court section 9(1) work can specifically be identified as it requires prior agreement from the Family Division Liaison Judge. On the evidence, High Court work was a regular and intrinsic part of the work.

[154]Ms Crasnow KC contends that there was no single discernible purpose for which section 9(1) was deployed. The respondents’ use of section 9(1) had changed from time to time in terms of whether section 9(1) and section 9(4) judges were regarded as candidates for the High Court bench. The respondents appeared to have changed policy in 2020 to improve their position in the litigation.

[155]In conclusion, Ms Crasnow KC invites me to assess each of the factors individually and then stand back and assess their cumulative effect. She invites me to reach the conclusion that the claimant Circuit Judges’ substantive and section 9(1) roles were in reality separate and distinct judicial roles. 38 of 63

[156]Mr Allen KC reminds me that although the Employment Appeal Tribunal in Dodds held that the respondents’ custom and practice was not the only consideration, it is a highly relevant one and the only one specifically identified for the purposes of regulations 2(1) and (2). He says that on the facts of these cases, it is decisive.

[157]For the claimant Circuit Judges, Mr Allen says that their terms of appointment make clear that they must support the business of the courts in their 210 salaried sitting days which is not restricted to the work of the county courts. The claimant Circuit Judges accepted in evidence that their section 9(1) sittings counted towards their annual sitting commitment as Circuit Judges.

[158]Mr Allen KC says where a salaried Circuit Judge works on a salaried part-time basis, section 9(1) work cannot take place in non-working time. Similarly, when a Circuit Judge retires, there is no freestanding entitlement to undertake section 9(1) sittings in retirement. That is because the section 9(1) authorisation is parasitic on the Circuit Judge appointment, and cannot be treated as severable from the Circuit Judge role. There is no evidence that section 9(1) sittings in non-salaried time ever happen. Mr Allen KC acknowledges that Recorders such as Mr Atherton may sit in their non-salaried time, and whilst the respondents discourage this, it is not prohibited.

[159]Mr Allen KC reminds me that fee-paid section 9(4) judges are paid at the Deputy High Court judge rate. If they do not hold a salaried office, they fall outside the scope of the no extra remuneration policy, but if they do hold salaried office, and perform their section 9(4) sittings in their salaried time, they are paid at their salaried rate, not the Deputy High Court Judge rate. This, Mr Allen KC says, is consistent with the respondents’ general policy that judicial sittings falling within salaried time are remunerated at the rate applicable to that salaried office.

[160]Mr Allen KC says, however, that I should be very wary of placing reliance on the fact that fee-paid section 9(4) judges are paid at the Deputy High Court Judge rate when assessing the question of whether Claimant Circuit Judges are part-time workers, and refers me to paragraphs 144-146 of Dodds.

[161]Mr Allen KC says that the claimant Circuit Judges (even Mr Barker, who performed a higher quantity of section 9(1) work compared to the others) do not only perform section 9(1) work, but when they do such work, it falls within salaried time. Particularly in the context of family work, it can be necessary to switch between jurisdictions during a single court day (sometimes in the context of the same case). Whenever section 9(1) work was or is done, it falls within salaried time.

[162]Mr Allen KC does not accept that the Judicial Appointments Commission recruitment process can be relevant to the question of part time status. If it is relevant to custom and practice, Sir Geoffrey Vos said in evidence that a higher standard is applied for the recruitment of High Court judges than to section 9(1) authorisations. Mr Allen KC submitted that it stood to reason that higher standards were applied to High Court judge recruitment as greater and different 39 of 63 expectations are placed on them in terms of the nature, complexity and importance of their work their other functions including leadership.

[163]Mr Allen KC says that if judges “sit down” in their salaried time, as they are sometimes required to do, such as a Court of Appeal judge sitting in the High Court; or a Senior Circuit Judge sitting in the Upper Tribunal; or a Circuit Judge sitting in the First-tier Tribunal, they are not regarded as having separate part time appointments. Whilst salaried judges enjoy salary protection and cannot be paid less if they “sit down”, this protection is contingent on their statutory appointment. But if, as they contend, the claimant Circuit Judges were doing separate part-time work when sitting under section 9(1), the same position would apply to work in a lower-paid role. This would be separate part-time work and salaried pay protection would not apply as the work would be outside their salaried time.

[164]Mr Allen KC contended that there were characteristics of a salaried judicial appointment which would not apply to separate fee-paid part-time roles. These included: security of office; regularity and predictability of income; entitlement to benefits, such as sick pay; no risk of not being paid if there was lower levels of work to do; entitlement to paid annual leave; pension benefits (such as relating to ill health retirement); a requirement to leave practice permanently upon taking office; greater restrictions on outside activities (such as those affecting commercial directorships and political activity).

[165]My conclusions on Issue 1 in respect of the claimant Circuit Judges are as follows. I remind myself that under regulation 2(2) of the PTWR, I must decide at this stage only whether, having regard to the custom and practice of the respondents in relation to workers employed by them under the same type of contract, the claimant Circuit Judges are not identifiable as full-time workers. I remind myself also that the foundation of the claimant Circuit Judges’ case is that they had separate part-time appointments as Circuit Judges and as section 9(1) judges. It is not their case that at the same time they held (or could have held) both full-time and part-time employments.

[166]I have set out at paragraphs 136-146 above my findings that the wording of the legislation suggests that the claimant Circuit Judges remained or remain Circuit Judges but with authority conferred upon them to act as High Court judges.

[167]I find that the respondents had a consistent custom and practice in regard to section 9(1) work that such work counted as part of the claimant Circuit Judges’ salaried sitting commitment of 210 days. It did not reduce that commitment nor was there any commitment to sit for any number of days as a section 9(1) judge. This is, in my view, a strong factor in support of a conclusion that such work was part of the Circuit Judge appointment.

[168]I find it relevant also that not only had the claimant Circuit Judges no statutory entitlement to additional remuneration but their letters of authorisation contained no terms or conditions of appointment about remuneration or anything else. This, in my view, is consistent with there being no creation of a separate appointment distinct from their substantive Circuit Judge role. Equally, 40 of 63 there was no communication of any change in their terms of appointment as Circuit Judges when they secured their section 9(1) authorisations10.

[169]I find that the respondents also had a consistent custom and practice that when the claimant Circuit Judges sat up under section 9(1), they received only the remuneration applicable to their substantive salaried role without any additional payment to reflect the higher salary attributable to the role in which they “sat up”. This was an expression of the respondents’ policy and practice to “sittingup” across the salaried judiciary as a whole.

[170]The treatment of section 9(4) judges reinforces my finding that this was the respondents’ practice for salaried judges when “sitting-up”. The respondents treated section 9(4) judges who did not have salaried roles differently by paying them the pro rata High Court salary, but paid salaried section 9(4) judges and section 9(1) judges only their substantive salary.

[171]As I have already said, I find that the provisions of the claimant Circuit Judges’ terms of appointment stating that they must support the business of the courts in their 210 salaried sitting days without limiting the scope of that business supports the conclusion that the work undertaken pursuant to section 9(1) authorisation fell within the scope of their Circuit Judge appointments.

[172]I note that the claimant Circuit Judges regarded themselves as full-time judges, with section 9(1) authorisations. They did not regard themselves as having separate appointments. This is not conclusive; it is another relevant factor.

[173]As to demarcation of duties, I accept that some section 9(1) work was undertaken in fixed blocks of time agreed in advance (for example much of Mr Barker’s work or Mr Bugg’s work in the deprivation of liberty list). But that, I find, was for administrative convenience. I accept also that the judge would know at any one time whether they were dealing with section 9(1) or Circuit Judge work, for example because express authority was required to hear section 9(1) family work. But on the other hand, Mrs George’s and Mr Farquhar’s evidence was that section 9(1) work was intermingled and might be only a small part of what was otherwise a Circuit Judge list (and indeed both types of work could arise in the same hearing). I have noted that the amounts of section 9(1) work varied widely from time to time and between judges. This, it seems to me, was inherent in the way work was organised and does not, in my judgment, point toward separate part-time appointments.

[174]I accept Ms Crasnow KC’s submission that the separate job descriptions for Circuit Judge and section 9(1) judge and the recruitment process through the Judicial Appointments Commission for the section 9(2CA) pool may point towards these being different appointments. There is an obvious point of distinction between a position for which judges must competitively apply and 10 Mr Farquhar and Nr Bugg obtained their section 9(1) authorisations separately, after they became Circuit Judges. If they thereby became engaged on separate part-time appointments, the terms of their Circuit Judge appointments must have been varied. However, the parties have disavowed any argument as to variation and I have not considered any of the principles about variation, instead focussing, as the parties invited me to do, on the reality of the situation. 41 of 63 roles which they are able to perform ex officio. But on balance, I conclude that these factors reflect that section 9(1) authorisation confers on judges the right to hear cases at a more senior level than that at which they are substantively appointed and the respondents’ practice has been to have a formal recruitment process for that.

[175]I do not find any differences, actual or perceived, in the standard of candidates for section 9(1) or High Court roles, or as to the perception of section 9(1) or 9(4) judges for future appointment to the High Court bench, material as to this issue. In any event I would be cautious in attributing significance to factors which have changed from time to time as suggested by the evidence I heard.

[176]I have drawn the factors together. None has been decisive in itself but I have found the wording of the legislation, the absence of any provision as to remuneration or any other terms and conditions of the section 9(1) authorisations, and the respondents’ clear custom and practice that section 9(1) sittings counted towards and were regarded as part of the Circuit Judge sitting commitment and did not attract any additional remuneration particularly significant. Looking at matters cumulatively, I do not find that the claimant Circuit Judges had separate and distinct part-time appointments as Circuit Judges and section 9(1) judges such as to lead to a conclusion that they were part-time workers for their section 9(1) work. Rather, I find that they were or are identifiable as full-time workers in the role of Circuit Judge or Senior Circuit Judge whose section 9(1) work was pursuant to an authorisation which they held by dint of their status as Circuit Judges which enabled then to be called upon to assist the High Court in the transaction of its business when the need arose. They were not part-time workers as defined in regulation 2(2) of the PTWR.

[177]In Dodds, the Employment Appeal Tribunal considered the position under the PTWD at paragraphs 150-159. The first question was whether the determination on Issue 1 should be upheld on the basis of claims made in reliance on the definition of a part-time worker in clause 3 of the PTWD.

[178]At paragraph 152, the Employment Appeal Tribunal held that: “…as a first stage, clause 3 requires the identification of the employee’s “normal hours of work” before a comparison is then drawn. Identifying an employee’s normal hours of work involves having regard to the nature of their employment, their terms and conditions and, potentially, the employer’s custom and practice.”

[179]The Employment Appeal Tribunal concluded that the terms of regulations 2(1) and (2) of the PTWR were not inconsistent with the approach contemplated by the PTWD; the PTWR made the sequential stages more explicit but there was no tension between the two, and it was necessary to determine the alleged part-time worker’s normal hours of work before any meaningful comparison exercise can be undertaken.

[180]I find that applying the formulation of “normal hours of work” in clause 3, the claimants were not part-time workers. They did not have separate part-time 42 of 63 appointments. Their normal hours of work were their full-time hours as Circuit Judges. Clause 3 does not assist the claimants.

[181]I now consider the position of Mr Atherton. As set out at paragraph 1.2 of the Agreed Generic List of Issues, the question for him is whether he was a parttime worker within the meaning of the PTWD and/or the PTWR when undertaking work as a Recorder during his salaried District Judge time.

[182]The respondents concede that he became a part-time worker from 1 November 2011 when he reduced his working time to 90%. That means that for the purposes of regulation 2(2) he was not identifiable as a full-time worker and he is entitled to pursue a claim under the PTWR as a part-time worker.

[183]However, as recorded by the Employment Appeal Tribunal at paragraph 116 of Dodds, the concession is that Mr Atherton was a part-time worker only because his salaried role as a District Judge was part-time from that point. The respondents do not concede that when Mr Atherton sat as a Recorder during his 90% salaried District Judge time, he was undertaking a second, distinct part-time role. It is essential to Mr Atherton’s case which requires a comparison to be made with full-time Circuit Judges that he establishes that he had that separate, part-time appointment as a Recorder. This consideration will apply to all others who sit as Recorders in their salaried time where the salaried roles are lower-remunerated. Mr Atherton cannot sustain that comparison if he had a single appointment covering his roles as District Judge and Recorder, whilst he sat regularly as a Recorder, the majority of his working time was as a District Judge. That is why Issue 1.2 is framed as it is.

[184]At paragraph 39 of her closing submissions, Ms Crasnow KC says that Mr Atherton’s appointment as a Recorder was free-standing. It was independent of his role as a District Judge; it contained no reference to him as a District Judge; it continued after he ceased to be a District Judge; it was in an entirely different practice area; he booked his Recorder sittings separately and sat at a different location. Further, Mr Atherton’s appointment as a Recorder was under section 21 of the CA which expressly describes Recorders as “part-time judges of the Crown Court”. This, she says, shows that his Recorder appointment was a separate and distinct, and part-time, role.

[185]Mr Allen KC reminds me at paragraph 74 of his closing submissions that Mr Atherton’s terms of appointment as a District Judge and as a Recorder specified that no extra remuneration in addition to salary may be claimed for concurrent part-time sittings. Also, at paragraph 96, he directs me to what the Employment Appeal Tribunal said at paragraph 111 of Dodds, which continues to reflect the respondents’ position: “Whilst these are matters of potential significance, I do not consider that they are conclusive in terms of Mr Atherton’s status when he sat as a recorder, as Mr Robin Allen submits. Mr Andrew Allen relies upon his terms and conditions as a district judge. As the EJ noted at paragraph 28 of his Reasons, the most recent version of the terms and conditions (from 2009) required district judges to “devote 215 days in each year to judicial business”. Mr Andrew Allen emphasises that this phrase is not limited to sitting in the county court. He also stresses that the terms and conditions contemplate a district judge sitting as a recorder; and provide that a district judge appointed as a 43 of 63 recorder will be expected sit for a minimum of 15 days a year in that capacity and will not receive extra remuneration in addition to his/her salary as a district judge for doing so. I am told that similar provisions were contained in earlier versions of the district judge’s terms and conditions in 2005 and 2007. The respondents also rely on Mr Masterson’s undisputed evidence that sitting as a recorder will count towards a district judge’s 215 days annual sitting commitment.”

[186]I have considered whether, having regard to the custom and practice of the respondents in relation to workers employed by the respondents under the same type of contract, and looking at the totality of the working arrangements, including (but not concentrating on) the time alleged by him to be or have been part-time work as a Recorder, Mr Atherton was not identifiable as a full-time worker. I will consider all aspects of the relationship and the respondents’ custom and practice and any other relevant factors relating to it as a whole.

[187]I have not found this as straightforward as the position of the section 9(1) judges. The fundamental difference between Mr Atherton’s case and the claims of the claimant Circuit Judge is that there is no doubt that Mr Atherton held a separate, distinct appointment as a Recorder. All of the factors identified by Ms Crasnow KC at paragraph 184 above hold true and are material to my determination of the issue. But in the end, I prefer the submissions of Mr Allen KC. Whilst Mr Atherton’s role as a Recorder was an identifiable, separate appointment (unlike the authorisations of the Claimant Circuit Judges under section 9(1)), the respondents’ custom and practice was that his Recorder sittings in his District Judge time counted towards his sitting requirements as a District Judge and did not attract any additional remuneration. This was consistent with his terms of appointment and the statutory underpinning of the role. Applying the requirements of regulation 2(2), he was not identifiable as a part-time worker, because the Recorder sittings were undertaken within his salaried role. Rather, he was identifiable as a full-time worker who performed his duties under his separate appointment as a Recorder as part of his role as a salaried District Judge.

[188]Accordingly, I find that Mr Atherton has not shown that he was a part-time worker within the PTWR in respect of that role.

[189]As I have decided Issue 1 against the claimants, their claims must fail, as they were not part-time workers within the PTWR. But as already intimated, in case I am wrong in my conclusion, and to assist the parties in these or the stayed cases, I have gone on to consider the other Agreed Generic Issues.

[190]I begin with Issue 2, which arises only in the claims of the claimant Circuit Judges, it being conceded that Mr Atherton is entitled to compare himself with a full-time Circuit Judge. I must assume, to decide this issue, that the claimant Circuit Judges have established their case that they were part-time workers within the PTWR.

[191]I set out Issue 2 again here for ease of reference: 2. COMPARATORS 44 of 632.1 For the purposes of the PTWR and/or PTWD are High Court Judges valid comparators to Circuit Judges acting up as High Court Judges pursuant to their authorisation under s9(1) of the SCA?

2.2 For the purposes of the PTWR and/or PTWD, the Respondents accept that Circuit Judges are valid comparators to District Judges when undertaking work as Recorders.

[192]Regulation 2(4) provides as follows as to comparability: “(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place-(a) both workers are- (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and

(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

[193]I adopt the analysis at paragraphs 28-30 of Dodds as to the correct approach to the identification of a “comparable full-time worker” in regulations 2(4) and 5(1) of the PTWR. “28. This was identified by the House of Lords in Matthews v Kent and Medway Towns Fire Authority

[2006] UKHL 8

[2006] ICR 365

(“Matthews”). Baroness Hale explained the position as follows: “43. …The sole question for the tribunal at this stage of the inquiry is whether the work on which the full-time and part-time workers are engaged is ‘the same or broadly similar’. I do not accept the applicants’ argument…that this involves looking at the similarities and ignoring any differences. The work which they do must be looked at as a whole, taking into account both similarities and differences. But the question is not whether it is different but whether it is the same or broadly similar. That question has also to be approached in the context of Regulations which are inviting a comparison between two types of worker whose work will almost inevitably be different to some extent. 44. In making that assessment, the extent to which the work that they do is exactly the same must be of great importance. 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’. It is easy to imagine workplaces where both full- and part-timers do the same work, but the full-timers have extra activities with which to fill their time. This should not prevent their work being regarded as the same or broadly similar overall. Also of great importance in this assessment is the importance of the same work which they do to the work of the enterprise as a whole. It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts or complaints handling in an ombudsman’s office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or 45 of 63 broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.”29. In Moultrie v Ministry of Justice

[2015] IRLR 264

, the Employment Appeal Tribunal upheld a tribunal’s finding that fee-paid medical members of tribunals such as the mental health tribunal were not engaged in “the same or broadly similar work” as fulltime salaried regional medical members, although 85% of their work was identical. Mr Justice Lewis (as he then was) concluded that the tribunal had faithfully applied the test identified in Matthews. During the course of his analysis he observed: “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.”

30. It is well established that the comparison must be made with an actual, rather than a hypothetical comparator: Carl v University of Sheffield

[2009] ICR 1286

at paragraph 23.

[194]Ms Crasnow KC submits that I must consider each claimant’s case individually. She says that the claimants who have retired (Mr Barker and Mrs George) cannot have their cases affected by matters which took place after that retirement. That is plainly correct, in my view, applying the wording of regulation 2(4) that the comparison must concern the period in which the alleged detrimental treatment took place.

[195]Ms Crasnow KC contends that the threshold for whether two roles are comparable is low. She warns me against taking an “over-precise” view. She refers me to paragraph 36 of Matthews, where Baroness Hale stated: “36. Part-time employment is inevitably different from full-time employment in a number of ways, yet the purpose of the 2000 Regulations is to secure that it is treated equitably. If the threshold of comparability is set too high this can only apply in the most straightforward of situations, for example, where full-timer and part-timer work in exactly the same way but one for, say, 40 hours a week and the other for, say, 20 hours a week. Yet the watchword of Directive 97/81 was flexibility in meeting the needs of both employers and workers.”

[196]Ms Crasnow KC says that the work of all of the levels of judiciary represented in these cases is to assist with the business of the courts and tribunals in England and Wales. That is true of the District Judge, Recorder, Circuit Judges, Deputy High Court Judges and High Court Judges. Each is engaged to decide cases and further the public good by doing right by all manner of people after the laws and usages of the realm.

[197]Ms Crasnow KC accepts that the differences between the overall work done by the comparator judges, when compared with the claimant Circuit Judges, are relevant, but reminds me of what was said at paragraph 44 of Matthews: 46 of 63 . 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’…. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts…”

[198]Ms Crasnow KC says that the respondents’ evidence has failed to engage with that analysis. It does not analyse the scope of work done “broadly” but in a narrow and pernickety way. Overall, she says that the work of the claimant Circuit Judges when acting under section 9(1) was broadly similar to that of a full-time salaried High Court Judge.

[199]Mr Allen KC says that Matthews requires a careful examination of the whole of the work undertaken by the claimant Circuit Judges and their comparators. This must analyse all the work they are actually engaged in. Moultrie shows that it is possible for a Tribunal to conclude that part-time and full-time workers are not comparable even though there may be a lot of things which both workers do which are the same or broadly similar.

[200]Mr Allen KC says (paragraph 98 of his closing submissions) that although there are similarities in the work, there are important differences which mean the work is not the same or broadly similar. He notes that the claimant Circuit Judges have not identified specific actual comparators; Mr Barker compares himself with substantive judges of the Chancery Division and BPC; Mrs George, Mr Farquhar and Mr Bugg with substantive judges of the Family Division11.

[201]Mr Allen KC identifies at paragraph 102 of his closing submissions specific matters which High Court Judges do which section 9(1) judges do not perform.

[202]My conclusions are as follows. The question I am answering is whether the work done by the claimant Circuit Judges was broadly similar to that undertaken by comparator substantive High Court Judges.

[203]The primary role of any judge, including the claimant Circuit Judges and the High Court Judges with whom they compare themselves, was and is to hear and determine claims or cases according to law. It is clear that when acting as section 9(1) judges, the claimant Circuit Judges were hearing cases which otherwise would be undertaken by High Court Judges. It was work which had been determined by way of case management process as of High Court level because of its complexity or seriousness. Thus, a large component of the work done by the claimant Circuit Judges and their High Court comparators was exactly the same.

[204]In line with paragraph 44 of Matthews, the question then is whether any differences in the work are of such importance as to prevent their work being regarded overall as “the same or broadly similar”. 11 Except as mentioned here, and despite the decision in Carl, no point has been taken about the claimant Circuit Judges’ failure to identify specific, named comparator High Court Judges. The point being made here is that the comparison must be made by considering the roles of High Court Judges in general terms. 47 of 63

[205]What are the differences? First, it is not in dispute that in all three divisions of the High Court, the very weightiest, most valuable and most important cases are reserved for substantive High Court judges. The claimant Circuit Judges accepted in evidence that substantive High Court judges undertake work at a level which they would not be asked to do. The difficulty, however, is to determine how much of the work of High Court Judges is at that level, what I would describe as category A cases (accepting that designation is not used in family cases).

[206]I acknowledge what Ms Crasnow KC says about the vagueness of the evidence about this, but I must do my best with what I have. I was consistently told about what was described as “mission creep”, meaning that section 9(1) judges now hear cases of greater importance and difficulty than hitherto, and I accept that evidence, but my impression, and I find, is that “category A” cases are relatively rare, but when they occur, they occupy significant judicial time and are an important part of the caseload diet of substantive High Court Judges. Sir Geoffrey Vos’s very high-level estimate of an average of 60-70% of time on such work may not be precisely accurate, but it supports my assessment that the time involved can be significant.

[207]Second, there is some work which is reserved to High Court Judges which section 9(1) judges cannot undertake, including applications for permission to appeal and duty out of hours and emergency work. High Court Judges may sit in the Court of Appeal on civil and family matters, and in the Divisional Court, which section 9(1) judges do not. Some High Court Judges may sit in crime, or in other divisions, which section 9(1) judges do not. Also, High Court Judges in family cases do not require permission to undertake Family Division or High Court level work; section 9(1) judges do.

[208]Third, substantive High Court judges undertake a variety of duties outside their court work which section 9(1) judges are not required to do. These duties at High Court level include leadership and management, chairing committees, mentoring and career guidance, training and recruitment, reform, acting as presiding or supervising judges or in family, Family Division Liaison Judges. I accept that the extent to which any particular High Court Judge engages in such work depends on their commitments, skills and interests.

[209]Ms Crasnow KC invites me to bear in mind that some differences arise because substantive High Court Judges are full-time in the role whereas section 9(1) judges are only part-time and would not have time or it would not make sense for them to perform duties outside court. I accept this but do not attribute any significance to it; the question for me is what differences there are, rather than the reasons for them.

[210]Regulation 2(4)(a)(ii) requires me to have regard as part of a comparison to “qualifications, skills and experience”. As Mr Allen KC reminds me at paragraph 106 of his closing submissions, clause 3(2) of the Framework Agreement includes seniority, which does not appear in regulation 4(2). Whilst I recognise, and have already commented upon, Sir Geoffrey Vos’s evidence about what he described as the higher standards expected of appointees to the High Court Bench, I do not regard qualifications, skills and experience as material in these 48 of 63 cases. In terms of the comparison to be made, the claimant Circuit Judges and their High Court comparators had the qualifications, skills and experience to undertake High Court work; the issue in these cases is whether the work done was the same or similar.

[211]I must decide whether the work of substantive High Court Judges and section 9(1) judges was or is “the same or broadly similar”. I must avoid concentrating unduly on differences or undertaking too detailed an analysis.

[212]I have found that a large part of the work of section 9(1) judges is exactly the same as that of substantive High Court judges. I have accorded that factor appropriate weight. But I have also found differences in the work. It is a matter of degree and assessment whether the differences are significant enough that the work is not broadly similar. In my judgment, the differences which I have identified at paragraphs 205-208 are such that the work is not broadly similar.

[213]High Court Judges undertake the most complex and difficult hearings which section 9(1) judges are not asked to do. These form a significant part of the function of a High Court Judge. High Court Judges undertake work as identified in paragraph 207 which section 9(1) judges do not do under section 9(1). High Court Judges undertake a range of senior administrative and leadership roles and functions outside of sitting which section 9(1) judges do not do under section 9(1).. I have taken into account that Mr Barker undertook a substantially greater amount of section 9(1) work than did the other section 9(1) Circuit Judges but where the comparison concerns the nature and quality of the work, this is not significant for the outcome; on the facts of these cases, the work was not the same or similar however much of it was done.

[214]I find, therefore, that the roles are or were not the same or broadly similar, and on Issue 2, my decision is that tor the purposes of the PTWR, High Court Judges are not valid comparators for Circuit Judges acting up under section 9(1).

[215]Moving on then to Issue 3, I must assume, contrary to my findings in Issues 1 and 2 (except Issue 2 for Mr Atherton) that the claimants have established that they were part-time workers who are or were entitled to compare themselves with High Court Judges or Circuit Judges (Mr Atherton).

[216]This is as below: 3. LESS FAVOURABLE TREATMENT ON THE GROUND OF PART-TIME STATUS3.1 In the Circuit Judge cases, the Respondents accept that the Claimants were treated in a less favourable manner by:3.1.1 In the case of Circuit Judges undertaking work in the High Court, being paid at the rate of a Circuit Judge rather than at the higher rate of a High Court Judge;

3.1.2 In the case of the Claimant retired District Judge, being paid at the rate of a District Judge rather than at the higher rate of a Circuit Judge when acting as a Recorder during his District Judge time. 49 of 63

3.2 Was the less favourable treatment on the ground of their part-time status?

[217]This is an issue as to causation. Regulation 5 of the PTWR is in the following terms: (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. …

[218]The question, therefore, is whether the admitted treatment was on the ground of the claimants’ part-time status. Regulation 5(2)(a) refers to less favourable treatment “on the ground” that the worker is a part-time worker, whereas clause 4.1 of the PTWD prohibits such treatment “solely because” the part-time worker works part-time. In the recent case of Augustine v Data Cars Limited

[2024] EAT 117

, on which I invited counsel’s submissions, the Employment Appeal Tribunal held that the correct approach to the phrase "on the ground that" under regulation 5(2)(a) is as identified in Sharma v Manchester City Council

[2008] ICR 623

and Carl v University of Sheffield

[2009] ICR 286

: part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause.

[219]Although there is an alternative line of authority, based on cases such as McMenemy v Capita Business Services Limited

2007 IRLR 400

which states that part-time status must be the sole cause of the treatment, Ms Crasnow KC and Mr Allen KC invite me to follow Augustine, Sharma and Carl, and I shall do so, Augustine being the most recent authority and binding upon me. In any event the answer in these cases would be the same whichever test I adopted.

[220]Ms Crasnow KC says that the issue in dispute under regulation 5 is whether at least part of the reason why the claimants were treated less favourably was that they are or were part-time workers or put another way, part-time status must be more than a minimal cause.

[221]Ms Crasnow KC says that the respondents’ approach to the causation Issue shows they are posing the wrong question in focussing on why the claimants are paid the way they are. The right question, she says, is “Why have the claimants suffered less favourable treatment in not being paid the same as their comparators?” If the question is posed the way the respondents propose, the 50 of 63 answer is “they are paid as they are, because that is how we pay them according to our policy and our terms.” That presupposes the conclusions and provides an entirely subjective answer to the question.

[222]Ms Crasnow KC contends that the respondents’ stance on causation equates to saying that a necessary ingredient of being a section 9(1) judge, in and of itself, is also the reason for their treatment. She reminds me that in Sharma the Employment Appeal Tribunal said at paragraph 57: “It would make a nonsense of the protection afforded to part-timers if the employer could successfully allege that differentiating between them and full-timers on the basis of the terms exclusively attributed to them was not discriminating against them on the basis that they were part-time. Take the case of an employer who does not give sick pay to parttimers but does to comparable full-timers. He would surely not be allowed to say that the basis of the distinction is the term of the contract, the part-timer not having the right to sick pay when the full-timer does. Of course, in principle the different treatment may be justifiable, but if the council were correct in this argument, it would mean that the Regulations would not be engaged at all and the issue of justification would not even arise.”

[223]Ms Crasnow KC says that likewise in these cases the respondents argue the basis of the distinction is the term and policy the part-timers work under; and it would make a nonsense of the PTWR if the respondents can evade their scope via a reliance on a term or policy. Thus the respondents’ case always ends with the answer that the claimants were paid this way because the respondents decided as such, and put in place a policy that salaried judges would not get an uplift if sitting up.

[224]Ms Crasnow KC says that this ignores the fact that there is no full time section 9(1) judge, and a full-time recorder would be a Circuit Judge. Mr Atherton only suffered a detriment because he worked as a recorder after becoming a District Judge and such work was necessarily part time. The claimant Circuit Judges had to be salaried to become section 9(1) judges and so could not escape the policy. This means that the respondents’ case focuses on the full-time role and the claimants’ on the part time role. Specifically for section 9(1) judges, the way the judges undertake work is via the section 9(1) authorisation, which is dependent upon being salaried. The work cannot be done full time. Because the claimant Circuit Judges are only able to be appointed under section 9(1) because they are already salaried, the reliance on salary for these purposes is not a distinct or divisible status from being part-time. When the correct question for the purpose of the PTWR is asked, the answer is that the claimants are paid as they are because they are part-time and are undertaking their full-time comparators’ role.

[225]Ms Crasnow KC says that there can be no argument that, as the offending treatment was not accorded to all part-time workers, the less favourable treatment could not have been on grounds of part-time status. In Sharma it was said at paragraphs 50 and 58: “50 The fact that not all part-timers are treated adversely does not mean that those who are, cannot take proceedings for discrimination if being part-time is a reason for their adverse treatment. 51 of 63 51 In our judgment, once it is found that the part-timer is treated less favourably than a comparator full-timer and being part-time is one of the reasons, that will suffice to trigger the Regulations.” 58 Where the reason for the distinction is the existence of the very term which is alleged to be the source of the less favourable treatment, and that term is exclusive to the group of part-timers, there is prima facie discrimination against the part timers, by which we mean unlawful discrimination unless the treatment can be justified.”

[226]Thus, Ms Crasnow KC says, it does not matter if there are other part-time workers (such as section 9(4) judges or section 9(1) recorders) to whom the term or policy is not applied. That does not change the reason why the claimants were treated as they were.

[227]Mr Allen KC invites me to conclude that, applying clause 4 of the Framework Agreement and/or regulation 5(2)(a) of the PTWR, the claimants’ part-time worker status was not the effective and predominant cause of any less favourable treatment they experienced.

[228]Mr Allen KC says that the claimants’ perception may be that it is unfair that they are or were paid less than their comparator High Court Judges for their section 9(1) sittings. However, I must be satisfied that the less favourable treatment is or was on the ground that they were part-time. If I am not satisfied that that is the effective and predominant cause, then the claims must be dismissed. It is not necessary at this point for the respondents to show that the reason for the difference in treatment is good, desirable, fair or equitable. Such considerations are irrelevant to the causation question. Perceptions of fairness may become relevant later to the question of objective justification, which arises only if the treatment was on the ground of the claimants’ part-time status.

[229]Mr Allen KC submits that in respect of the claimant Circuit Judges, they hold or held full-time salaried offices, in relation to which they are required to devote their working time to the ‘business of the courts’. They are or were paid at the Circuit Judge rate because their section 9(1) sittings took place in their salaried time, in accordance with their salaried terms, and consistent with the wider policy approach taken by the respondents towards judicial pay and flexible deployment of the judiciary.

[230]In other words, Mr Allen KC says, the reason why these claimants continued to be paid as salaried Circuit Judges when acting pursuant to section 9(1) is because, they are salaried Circuit Judges working within salaried time. They may have been acting as High Court Judges, but their section 9(1) work formed part of their salaried work falling within their salaried time. The claimant Circuit Judges were paid the way they were for their section 9(1) sittings because those sittings are within salaried time, but those sittings were attributable to their appointment as Circuit Judges (because their authorisation was parasitic on their appointments).

[231]Mr Allen KC says that in many work situations there will be times when a salaried worker is doing the same sort of work as another salaried worker who is superior or inferior in the workplace hierarchy to them. It does not follow that in relation to that particular task, the worker is a part-time worker or that their pay should be 52 of 63 based on each task performed rather than for the role overall, or that the reason for this treatment relates to part-time worker status (where this can be established). That is exactly the case for the salaried Circuit Judges who, in relation to their office, where they have obtained the necessary authorisation, may sit in the High Court pursuant to section 9(1).

[232]As to Mr Atherton, Mr Allen KC says the answer to the causation question is essentially the same. The reason why he continued to be paid as a District Judge (before and after varying his salaried terms to 90% FTE) when sitting as a Recorder is that, at all material times, his Recorder sittings took place within his District Judge salaried time. In accordance with the terms and conditions which applied to his salaried office (and also the respondents’ general policy approach), he was required to give priority to his work as a District Judge and, if sitting as a Recorder within salaried time, he was to be paid at his salaried rate. Mr Atherton agreed, when it was put to him in cross examination, that the reason he was paid at the District Judge rate during his salaried time (whether sitting as a Recorder or a District Judge) was because he was a salaried District Judge. He accepted that the key factor that determined how he was paid as a Recorder after becoming a salaried part-time District Judge was whether his Recorder sittings fell within his salaried time or not. The respondents agree with his evidence on this point.

[233]Mr Allen KC says that from 1st November 2011, when he sat as a Recorder during his 10% non-salaried time, Mr Atherton was paid a Recorder fee which was equivalent to the Circuit Judge rate, whereas the Recorder sittings in his 90% salaried time continued to be paid at his salaried rate (as they had been when he was a full-time salaried District Judge). This, Mr Allen KC says, plainly shows that, before and after he became a part-time worker in relation to his District Judge appointment, the reason for his rate of Recorder pay during salaried time was that the Recorder sittings fell within his salaried time and no part of the reason was that he was a part-time worker.

[234]Mr Allen KC asks me to note that there are other situations where judges sitting in inferior jurisdictions (within and outside of the scope of section 9(1)) continue to receive their salaried remuneration, such as when a Lord Justice of Appeal sits in the High Court, or when a Senior Circuit Judge such as Mr Barker sits in the Upper Tribunal, or when a Circuit Judge sits in the First-tier Tribunal. Such examples show that, on a wider basis, judges in different situations are treated by the respondents’ policy consistently and in accordance with their terms and conditions of salaried office. The example of a salaried section 9(4) judge is also relevant. They do not receive the Deputy High Court Judge rate, but are paid in accordance with their salary because they are salaried. This supports the respondents’ position that the claimants were not paid at the rate that they were on the ground of part-time status, but because they were salaried judges and sittings took place during salaried time.

[235]Mr Allen KC suggests the wider position in the Civil Service for Crown Servants is also noteworthy. The policy relating to no extra remuneration for judges tallies with the wider position of salaried civil servants. Although the judiciary are not 53 of 63 Crown Servants, it is relevant that the respondents’ treatment of them is consistent with a wider picture.

[236]Mr Allen KC does not accept that the respondents’ position on causation is circular or otherwise lacking in substance. The only effective and predominant cause was that the claimants were salaried judges and their sittings took place within their salaried time. Mr Allen KC says that if I accept this, I must reject the claims at the causation stage.

[237]I have to decide whether the claimants’ part-time worker status was the effective and predominant cause of the less favourable treatment in terms of their remuneration. The respondents’ case is that the less favourable treatment was because the claimants were salaried judges who undertook their work as section 9(1) judges or as a Recorder during their salaried time. It was not because they were part-time.

[238]I have readily concluded that the effective and predominant reason the claimants were paid as they were was not their claimed part-time status. The reason was that they were salaried judges who undertook their section 9(1) or Recorder duties during salaried time. The respondents therefore succeed on this issue.

[239]I have found as fact that the respondents’ consistent policy was that where salaried judges undertook duties as section 9(1) judges or Recorders during salaried time, they did not receive any additional remuneration. I have accepted the evidence of Sir Geoffrey Vos and Mr Waldren to this effect; indeed, the claimants themselves accepted this was the case. It was in accordance with the terms of appointment of District Judges, Circuit Judges and Recorders.

[240]I accept Ms Crasnow KC’s submission that the fact that other part-time judges are treated differently does not mean that the claimants’ part-time status could not be the reason for their treatment. But I do not agree with her that it does not matter that other part-time judges are not treated the same. The treatment of others is capable, as the Employment Appeal Tribunal put it at paragraph 186 of the decision in Dodds, of shedding light on the question whether the less favourable treatment of the claimants was on the ground of their part-time status.

[241]I have found that section 9(1) judges who were not salaried received the pro rata equivalent of a High Court Judge’s salary. Section 9(1) judges who were salaried did not. The same was true of section (94) judges; the majority of whom were not salaried and received the pro rata High Court Judge’s salary. I have noted that when Mr Atherton became 90% fractional, he received a pro rata High Court Judges’ salary for sittings done outside salaried time but received no additional remuneration for those in salaried time. All of this, taken with the evidence of Sir Geoffrey Vos and Mr Waldren as to the reason the claimants and other judges in their position were and are paid as they were, leads me to the conclusion that the claimants’ salaried status was the reason for their treatment.

[242]I accept Ms Crasnow KC’s submission that all those who are affected by the policy will be part-time. I accept also that Circuit Judges cannot escape the policy as their authorisation is dependent on their salaried status. But I am not applying 54 of 63 a “but for” test, and neither fact determines what the reason for the treatment was. I accept also that judges in this position may feel that the result is unjust. But the only question for me on the causation issue is what the reason for the treatment was, and it is clear in my judgment that it was not part-time status but rather that the work was done in salaried time as part of salaried duties. That means that within regulation 5, the less favourable treatment was not on the ground of part-time status, and the claimants’ claims fail for this reason also.

[243]I come finally to Issue 4, the question of objective justification. This arises under regulation 5(2)(b) of the PTWR. I must assume for this issue that the claimants have established that they were part-time workers who can compare themselves with High Court Judges or Circuit Judges (Mr Atherton) and the reason for their treatment was their part-time status.

[244]Issue 4 is in the following terms: 4. OBJECTIVE JUSTIFICATION 4.1 Was such less favourable treatment objectively justified on objective grounds consistently with the PTWR and the PTWD? The Respondent relies on the aims of:4.1.1 Fair and flexible deployment of judges to Courts and Tribunals whose office holders may be paid at rates which are different (higher or lower) from theirs;

4.1.2 Fair allocation of resources; and

4.1.3 Reflecting the difference in hierarchy and the differences in full-time roles as

[245]Regulation 5(2)(b) provides:

[246]At paragraph 32 of the decision in Dodds, the Employment Appeal Tribunal identified that the case law on what is required to establish justification on objective grounds was reviewed by Lord Hope and Baroness Hale in O’Brien

[2013] ICR 299

. The Employment Appeal Tribunal identified the key parts of the Supreme Court’s analysis in O’Brien as follows: 55 of 63 “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 58.65. …

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.” This court proposes to follow the guidance given by the Court of Justice and the Advocate General in those passages.”

[247]Then at paragraph 33 the Employment Appeal Tribunal observed that caselaw on whether a respondent may rely upon costs savings as a justification defence was reviewed by Underhill LJ in Heskett v Secretary of State for Justice

[2021] ICR 110

. The case concerned an age discrimination claim under the Equality Act 2010, but the principles summarised by Underhill LJ apply to part-time worker claims. At paragraph 81 Underhill LJ set out the principles: “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’”. In other words, to take the paradigm case of discriminatory pay, an employer cannot “justify the discriminatory payment to A of less than B simply because it would cost more to pay A the same as B.”82. That might seem too trite to need saying…but it is not difficult to understand why the CJEU thought it important to spell it out. It is the same obvious but important point that the Supreme Court makes at several points in O’Brien…: see para 67 of its judgment (“very different from deliberately discriminating against part-time workers in order to 56 of 63 save money”), para 69 (“a legitimate aim other than the simple saving of cost”) and the example given at the end of para 74 (“it would not be legitimate to pay women judges less than men judges on the basis that it would cost less”).

83. It follows that the essential question is whether the employer’s aim in acting in the way that gives rise to the discriminatory impact can fairly be described as no more than a wish to save costs. If so, the defence of justification cannot succeed. But, if not, it will be necessary to arrive at a fair characterisation of the employer’s aim taken as a whole and decide whether that aim is legitimate. The distinction involved may sometimes be subtle…but it is real. ….. 88. …there is certainly an established principle that, to take Rimer LJ’s formulation in Woodcock

[2012] ICR 1126

, para 66, “the saving or avoidance of costs will not, without more, amount to the achieving of a legitimate aim” for the purpose of the defence of justification in a discrimination claim; but that that principle needs to be understood in the way that I have sought to explain it in the preceding paragraphs. It only bites where the aim is, as the CJEU put it in Hill v Revenue Comrs

[1999] ICR 48

, “solely” to avoid costs. 89. …It is better, in any case where the issue arises, to consider how the employer’s aim can most fairly be characterised, looking at the total picture. It is only if the fair characterisation is indeed that the aim was solely to avoid increased costs that it has to be treated as illegitimate.”

[248]A further relevant consideration in evaluating claimed objective justification is to balance the discriminatory effect of the provision against the business reason for it, including whether a less discriminatory measure might be adopted.

[249]Ms Crasnow KC identifies the claimants’ case in respect of each of the three grounds relied on by the respondents as follows:(a) fair and flexible deployment of judges to courts and tribunals may in principle be a legitimate aim, but having regard to rates of pay where work to which judges are deployed is remunerated at higher or lower rates is not. There is no possibility of paying any salaried judge less than their salary. There is a statutory prohibition on doing so.

(b) Fair allocation of resources, provided only that it includes administrative difficulties or challenges, can be a legitimate aim in principle; and

(c) Reflecting differences in hierarchy is not a legitimate aim. The claimants have established they are part-time workers, doing comparable work to their comparators. It cannot be a legitimate aim to pay less money for equal work. This also appears to admit a purely budgetary purpose. This is effectively a justification that “it is acceptable to pay part-time workers less than full-time workers”. That is self-evidently unavailable as a legitimate aim.

[250]As to flexible deployment, Ms Crasnow KC says there is no suitability at all for the difference in treatment for this aim. As Mrs George pointed out in her evidence, withholding pay does not in any way change how flexibly the judiciary can be deployed. There are a number of enactments that provide for different judges sitting in different courts or tribunals. Similarly judges may be deployed at different locations at the “same” level. Nothing about either of those, or any other, factors necessitates paying part-time workers less than their full-time equivalent. Mr Atherton made this point in his evidence that “Flexibility in any 57 of 63 organisation must be a benefit if the people are qualified in doing the work - but it would not make me any less flexible if I was paid as a recorder properly.“

[251]As to fair allocation of resources, Ms Crasnow KC submits that there has been no substantiating evidence on this particular point. Mr Waldren said that a different system and validation of payments would be required, but there was no evidence of what time or resource would be required for this. Ms Crasnow KC submits that this is an insufficient evidence base to discharge the burden on the respondents that the difference in treatment is a suitable means of achieving the aim.

[252]Ms Crasnow KC says that if, contrary to the claimants’ case, reflecting differences in hierarchy is a legitimate aim, the evidence is not sufficient to demonstrate the suitability of the difference in treatment. The “hierarchy”, insofar as it exists, ceases to exist once a judge is “siting up” and exercising the jurisdiction of the more senior office.

[253]Ms Crasnow KC submits that it is not reasonably necessary to pay part-time workers less to achieve the aims relied on. She directs me to Lady Hale’s judgment in O’Brien at paragraph 71: “[Giving greater reward to those who need it]…might be a legitimate aim, but (as Advocate General Kokott explained) the unequal treatment of different classes of employees must 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. An employer might devise a scheme which rewarded its workers according to need rather than to their contribution, but the criteria would have to be precise and transparent. That is not so here. Some part-timers will need this provision as much as, if not more than, some of the full-timers. On examination, this objective amounts to nothing more than a blanket discrimination between the different classes of worker, which would undermine the basic principle of the PTWD.”.

[254]As to administrative difficulties, Mr Waldren suggested that there could be a negative impact on the administration of justice if the costs burden was increased, as savings might have to be made elsewhere. This, Ms Crasnow KC submitted, was tantamount to placing the burden of saving costs directly upon part-time workers.

[255]Finally, Mr Crasnow KC contended that the constitutional problems suggested by Mr Waldren if other judges identified sitting up opportunities from which judges sitting-up might financially benefit were fanciful; it was absurd to suggest the public would be concerned by any perceived conflict of interest..

[256]Mr Allen KC invites me to conclude that the respondents’ policy approach is justified in accordance with clause 4 of the Framework Agreement and/or regulation 5(2)(b).That policy is that where salaried office holders are deployed to sit in a different court or tribunal, they are paid at the rate applicable to their salaried office.

[257]Mr Allen KC says that the aims are those discussed at paragraphs 17-21 of Mr Waldren’s witness statement. 58 of 63

[258]The first aim is fair and flexible deployment of judges to courts and tribunals whose office holders may be paid at rates which are different (higher or lower) from theirs. Mr Allen KC says that fair and flexible deployment of judges is an essential feature of the efficient administration of the justice system, which ensures that variable work demands can be met, work can be prioritised and allocated in an effective and efficient way, and that work is dealt with by judges of appropriate experience and seniority. There is a statutory cap on the number of High Court Judges, and section 9(1) is a tool which assists with the burden of High Court work. Furthermore, as Mr Waldren explained, flexibility is assisted by having consistency of pay and by not having the administrative and financial constraints discussed below. The processes required if the claimants succeed will inevitably be more costly, cumbersome and administratively complex to implement, which will undermine the aim of flexibility of deployment.

[259]The second aim is fair allocation of resources (including the difficulties of administering a system involving differential rates of pay to Circuit Judges undertaking section 9(1) duties). It is, Mr Allen contends, fair and reasonable that salaried judicial office holders are paid in accordance with their terms and conditions of appointment and their salary grade for the sittings they undertake within salaried time. This aim also includes the respondents’ ability to utilise its judicial resources in a fair and efficient way.

[260]Mr Allen KC submits that the claimants’ 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 for the respondents and other members of the judiciary (requiring paying judges differently depending on the type of work they do). When Mr Waldren was asked about the disparate approaches to additional fees for feepaid judges, and an ongoing review of additional fees across the courts and tribunals, Mr Waldren responded that the review was about harmonising and simplifying variety of approaches across different jurisdictions, and paying an additional fee to a fee-paid judge (for example, for reading-in) was not the same as paying a salaried judge differently from the salary they already received for particular tasks carried out in their salaried time. Mr Waldren accepted that devising a system would not be impossible, but emphasised that it would be complex and costly to create, involving a new system. This, Mr Allen KC contended, would be a disproportionate task.

[261]Mr Allen KC submitted that the respondents did not have to show, to make good their objective justification defence, that it would be impossible to implement a system to give enhanced pay for section 9(1) work. The significant administrative disadvantage of devising a new system, combined with the other factors including cost, is sufficient to show that the discrimination is justified. It is unnecessary to model the cost, as there is no dispute that it would be considerable, nor can it sensibly be disputed that devising and implementing a new system would be complex. The claimants were unable to explain in a convincing way how their proposed system could or would work, or even agree whether every minute of section 9(1) work should be remunerated at the higher level, or minimum threshold would need to be crossed. 59 of 63

[262]The third aim was reflecting the differences in hierarchy and between full-time judicial roles. In Mr Allen KC’s submission, it was reasonable for judges of differing levels of rank or seniority, as reflected by the judicial hierarchy, to be paid differently, which also related to ability to recruit the very best candidates to the High Court bench. Superior pay is one way in which the best calibre candidates for more senior judicial roles can be attracted and retained. Different levels of pay also reflect the differences between judicial roles (for example, in relation to complexity of the work or wider commitments attributable to the role).

[263]Mr Allen KC submits that the question of proportionality includes consideration of the importance of judicial independence and the avoidance of conflict of interest or a perception of conflict of interest. He observes that the claimants reacted strongly to the suggestion that the public perception of judicial probity and independence could be undermined. The respondents do not dispute that judges are appointed as individuals of integrity and no criticism is intended of the personal probity of any of the claimants. However, judges are not, and should not be, beyond scrutiny or reproach. They are capable of error, and the respondents are concerned about the perception of judicial integrity. Mr Allen KC says that the fact is that, if these claims succeed, judges will need to make decisions which have direct consequences on the pay that they themselves or other judges receive, for example at gatekeeping stage. There is scope for a perception of conflict of interest. Pay differentials should not, even implicitly, be a feature of or a consequence of the exercise of discretion. The introduction of a pay differential also introduces a potential public perception that such a pay differential could play a part in the decision-making process. As things stand, pay does not feature in these decisions, and that is the way it should be, as being consistent with the independence of the judiciary. Mr Allen KC describes this as a point of constitutional significance.

[264]The principles which I will apply in considering whether the impugned treatment is justified on objective grounds are that the identified difference in treatment must pursue a legitimate aim, must be suitable for achieving that objective, and must be reasonably necessary for the purpose. As to avoiding cost, it is necessary to consider how the employer’s aims can most fairly be characterised, looking at the total picture. It is only if the fair characterisation is that the aim was solely to avoid increased costs that it has to be treated as illegitimate. With those principles in mind, my conclusions are as follows.

[265]I find that the respondents’ first aim is legitimate in principle. This is fair and flexible deployment of judges to courts and tribunals whose office holders may be paid at rates which are different (higher or lower) from theirs. The respondents say that the current arrangements assist flexibility in judges moving easily from siting in one capacity to another during the course of a day.

[266]In terms of objective justification, however, there is force in the claimants’ criticism that it is difficult to see how paying judges less than the appropriate pro rata rate for the work is a suitable means for achieving this flexibility objective. Judges will be no less flexible if they are paid the rate for the job. But as I understand it, the respondents’ primary contention relates to the cost and 60 of 63 administrative difficulty of paying additional remuneration for judges when they sit up, and I will return to this.

[267]The second asserted aim is fair allocation of resources (including the difficulties of administering a system involving differential rates of pay to Circuit Judges undertaking section 9(1) duties). I find that fair allocation of resources is a legitimate objective in itself; but the second part of the asserted aim (in parentheses as set out above) seems to me to be part of the justification rather than the aim. Again, I return to this below.

[268]I find that the respondents’ third aim of reflecting the differences in hierarchy and between full-time judicial roles in terms of the salaries attributable to the roles is also legitimate in principle. Hierarchy denote seniority, in terms of experience and complexity and seriousness of the work undertaken in different roles, and I agree with Mr Allen KC that such distinctions are legitimate, for the reasons he gives. It is a legitimate aim that rates of pay will reflect the seniority and responsibility of the role and are set to attract appropriate candidates to undertake the role on a salaried basis. But it is difficult to see how paying judges sitting-up less than the pro rata rate is suitable for achieving the objective; the rate paid to section 9(1) judges is immaterial to the purpose of paying substantive senior judges a rate which reflects the seniority and difficulty of the role.

[269]Inherent in the respondents’ case as to objective justification, as I see it, are three matters. The first is cost, and I accept that to pay judges sitting-up the same pro rata salary as substantive office-holders would carry a substantial cost. Mr Waldren said in evidence that savings would need to be found elsewhere in the respondents’ budget were this cost to be incurred, and it is possible that increased administration and management costs could lead to less use of section 9(1) judges in favour of meeting the demands of the High Court in different ways. Cost cannot be, of course, in itself an objective ground justifying discrimination. I find that the respondents’ main purpose is indeed saving cost, but I find also that it is not their only purpose, and this leads me to the second matter, which is administrative difficulties. I acknowledge that no system exists within the respondents’ organisation to identify and pay salaried office-holders additional remuneration for sitting-up, and that developing and operating such a system would require substantial time and effort. This is particularly so when the evidence shows that section 9(1) work may occupy only a small, and unpredictable, part of a Circuit Judge’s day.

[270]Although the respondents did not lead any evidence as to what the cost of paying section 9(1) judges or recorders on a pro rata basis would be, I will accept without more that it would be significant; I have referred to the extent of the use of section 9(1) judges. Administrative difficulties are more troubling; Mr Waldron’s evidence was not that it was impossible to design the necessary systems; it was that doing so would increase administration and management costs and planning projections would be difficult particularly in relation to family work, where a Circuit Judge may switch between section 9(1) work and County Court work several times a day. Mr Waldron told me that the respondents had not modelled what would be involved in a system of, for example, a time-record or part-day basis of claiming additional remuneration. But I must accept that there would be 61 of 63 significant administrative and cost implications not only in respect of the additional remuneration payable under such arrangements, but also in designing and developing, implementing and operating such a system.

[271]In respect of Mr Atherton, I heard no evidence that administrative difficulties arose when, from 2011, some of his sittings as a recorder which were performed outside his salaried time were paid at the pro rata Circuit Judge rate.

[272]The respondents also rely upon, as a third overarching consideration, the conflicts of interest (or public perception of conflicts of interest) that could arise if salaried judges were paid differently depending on the type of work that they did. They say that this arises because judges categorising or allocating work might be motivated by a desire to allocate to the financial advantage to other judges. In his evidence, Mr Waldron focussed on the public perception of bias that might exist.

[273]I regard this as fanciful. I have made findings of fact about the systems which exist for allocating work based on the circumstances of each case and without any consideration whatever of judges’ remuneration. I note also that work is already allocated to fee-paid Recorders without similar concerns arising. The assertion – which is all it is - that judges might make such decisions from a desire to benefit other judges in terms of the fees they would receive impugns the integrity of judicial office-holders in an unwarranted and unjustified way and I have no hesitation in rejecting it. As to public perception, I do not consider that any fair-minded observer with full knowledge of the circumstances of allocation of work would conclude there was any real possibility of bias in such decisions. There is no evidence whatever that any issues of adverse public perception would arise.

[274]I do not find that there is any possibility of judges being paid less if they “sat down” in an inferior jurisdiction. The respondents accept that such an outcome is prohibited by statute. Judges’ pay cannot be reduced. There is no reason why paying judges additional remuneration for “sitting-up” carries any concomitant risk of paying less for “sitting-down”.

[275]I draw all this together and have undertaken the required balancing exercise. As I have said, the identified difference in treatment must pursue a legitimate aim, must be suitable for achieving that objective, and must be reasonably necessary for the purpose. On the assumed findings, the discriminatory effect of the respondents’ policy is that when the claimants “sat up,” the respondents treated them less favourably as part-time workers than comparable full-time workers by failing to remunerate them at the per diem equivalent of the higher rate of remuneration paid to those who sit full-time in the more senior judicial capacity.

[276]I accept that it is easier for the respondents to achieve flexibility of deployment of section 9(1) judges and recorders if there is no requirement to pay additional remuneration for their sitting-up. There is a saving of the cost of the additional remuneration and no requirement for an administrative system for calculation and payment of additional remuneration. I accept also that the respondents will incur significant additional cost and administrative time and expense in 62 of 63 designing, implementing and operating the required systems (which do not presently exist) for paying additional remuneration to salaried judges “sitting-up”.

[277]But I do not accept that the treatment which involves paying part-time judges less than their full-time comparators on the ground of their part-time status is suitable for the purpose or reasonably necessary. Cost is not in itself a ground justifying a discriminatory policy and the respondents have not established what the extent of the administrative difficulties in addition to the cost of the payments would be sufficient to establish that the policy is objectively justified when weighed against its discriminatory effect. It is insufficient in the circumstances of these cases simply to say that there are no systems in place to make the necessary payments to remove the discrimination and it will be difficult to implement them, without clear evidence of what that will entail. Objectively viewed, a method of payment for time spent on “sitting-up” appears capable of being devised, and the respondents have not established that it would be disproportionately difficult or expensive to implement judged against the requirement that the existing policy must be justified on objective grounds.

[278]Similarly and for the same reasons, I do not find that the asserted aim of fair allocation of resources has been established as objectively justified because ameliorating the adverse effect on the claimants and judges in their position would entail cost and administrative resources. The respondents do not say that paying part-time judges less that their full-time comparators is in itself justified as being a fair allocation of resources; they rely on the cost and administrative resources involved in setting up and operating systems for doing it. For the reasons I have given above, I do not find that this was justified on objective grounds.

[279]I find, therefore, in respect of Issue 4 that the respondents have not discharged the burden upon them of showing that the assumed treatment of the claimants was justified on objective grounds. In light of my conclusions on Issues 1, 2 and 3, however, the claimants’ claims are not well-founded and are dismissed.