Andrew Allen KC and Alex Line successfully represent the Ministry of Justice and Lord Chancellor in rehearing of pay and pensions claims brought by judges

In long running group litigation, the Ministry of Justice and Lord Chancellor, represented by Andrew Allen KC and Alex Line, who were instructed by the Government Legal Department, have successfully defended claims brought by judges under the Part-time Worker (Less Favourable Treatment) Regulations 2000 in relation to their pay and pension conditions.

Background

The case concerns Circuit Judges who are authorised under s.9(1) of the Senior Courts Act 1981 to sit in the High Court. When doing so, the Claimants (who form part of a wider cohort of judge claimants) contended that they were part-time workers, and treated less favourably compared to salaried judges of the High Court in respect of pay and pension. Another Claimant was a salaried District Judge who was also appointed as a Recorder, and sat as a Recorder in his salaried time. He contended that he was treated less favourably by being paid as a District judge for such sittings rather than equivalently to a Circuit Judge.

The Employment Tribunal initially found in the judges’ favour in December 2021, concluding that the Claimants (save for one Circuit Judge who relied on his sittings in the Court of Appeal (Criminal Division) were part-time workers who had been discriminated against: Read the initial judgment here.

Andrew and Alex were instructed by the Ministry of Justice and Lord Chancellor to assist with an appeal against this decision. The Employment Appeal Tribunal handed down its decision in March 2023. Based on Andrew and Alex’s arguments, it was found by the EAT that the Employment Tribunal’s decision contained various errors of law, and was set aside with a re-hearing before a differently constituted Employment Tribunal.

Coverage of this decision can be found here.

The full judgment can be found here; Ministry of Justice & Anor v R Dodds & Ors (PART-TIME WORKERS) [2023] EAT 31 (07 March 2023).

The remitted proceedings

The rehearing took place in June 2024 before Regional Employment Judge Robertson. Some of the test claimants had changed, but the core issues remained the same – whether they were part-time workers, whether they could compare themselves to their chosen comparators, causation, and objective justification. On behalf of the Ministry of Justice and Lord Chancellor, written and oral evidence was heard from (amongst other sources) Lord Justice Baker, and from Sir Geoffrey Vos, the Master of the Rolls.

The decision of the Tribunal was handed down on 29^th October 2024, available here.

Summary of the Dodds appeal

The Employment Tribunal dismissed the claims in a 63-page decision, concluding that:

1. The Claimant Circuit Judges are not part-time workers in relation to their s.9(1) sittings or at all.
2. The Claimant District Judge/Recorder was a part-time worker District Judge from a particular point (when he reduced to salaried part-time working arrangements) but not before. He was not doing separately identifiable part-time work when sitting as a Recorder in his salaried District Judge time.
3. Circuit Judges who sit in the High Court under s.9(1) of the Senior Courts Act 1981 cannot validly compare themselves to High Court Judges.
4. The reason for the treatment the Claimants complain of was not, in any event, part-time worker status.
5. The treatment was not objectively justified. However, this finding was, in the circumstances, irrelevant to the outcome given the findings on other issues.

Related part-time worker litigation

This outcome, in what has become known as the Dodds litigation, follows Andrew and Alex’s recent successful representation of the Ministry of Justice and Lord Chancellor at Employment Tribunal and Employment Appeal Tribunal level in the Clayson litigation, also involving pay and pension conditions for Circuit Judges; available here.

Find out more

Andrew Allen KC has a successful employment and discrimination practice encompassing TUPE, contractual disputes, discrimination, equal pay, restrictive covenants, unfair dismissal, redundancy, working time, minimum wage, breach of contract, parental and carer’s rights, remuneration and bonuses. He appears in the ET, EAT, County Court, High Court and Court of Appeal as well as in internal and professional disciplinary and regulatory disputes. He has appeared in the employment tribunals in England, Wales, Northern Ireland and Scotland.

Alex Line has significant experience of representing both employers and employees relating to a broad range of sectors in Employment Tribunal proceedings, ranging from providing strategic advice, attending preliminary hearings, through to undertaking complex multi-week trials. He has experience of appearing before the Employment Appeal Tribunal and the Court of Appeal in employment cases. 

To find out more, contact Nick Levett on +44 (0)20 7427 4908 for a confidential discussion.

News 13 Nov, 2024