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Judgment was handed down on 31st August 2023 by the Employment Tribunal in a group claim brought by salaried Circuit Judges, relying on their former Recorder status, in Clayson & Others v Ministry of Justice & Lord Chancellor (Case No: 2204416/2022 & Others). Andrew Allen KC and Alexander Line represented the successful party in this part-time worker challenge.
Following their recent success in the EAT in Ministry of Justice & Lord Chancellor v Dodds  UKEAT 31, Andrew Allen KC and Alexander Line, instructed by the Government Legal Department, have successfully defended at first instance a separate group claim brought by Circuit Judges under the Part-Time Worker Regulations 2000.
The three test Claimants (who formed part of a larger cohort) were each former Recorders who were appointed to the office of Circuit Judge on or after 31st March 1995. That date was important, as it was the date on which a new judicial pension scheme under the Judicial Pensions and Retirement Act 1993 (‘JUPRA’) came into effect. They contended that the terms of this scheme were less favourable than the scheme under the Judicial Pensions Act 1981. Although that scheme only applied to salaried judges, they contended that (applying O’Brien retrospectively) their Recorder sittings and subsequent Circuit Judge sittings should be compensated, in terms of pension entitlement, equivalent to what a Circuit Judge under the 1981 scheme would have enjoyed. Central to their arguments was that there was no material difference between the offices of Recorder and Circuit Judge, save that one was full-time and the other part-time.
The claim was rejected on a number of grounds:
i. The Tribunal found that, in the context of s.1(1)(b)(ii) of JUPRA, the offices of Circuit Judge was ‘some other qualifying judicial office’ compared to that of Recorder.
ii. When the Claimants were appointed as Circuit Judges, they ceased to be Recorders, and so were appointed to some other qualifying office service in which would (apart from JUPRA) have been subject to some other pension scheme – thereby meaning that they were correctly subject to a JUPRA pension.
iii. To make a valid comparison under the PTWR, it was necessary to take into account (which the Claimant’s contended should not be the case) that the comparator would also have ceased to hold their existing office and be appointed to some other qualifying judicial office. A comparator, looked at in this way, would have been treated in materially the same way as the Claimants.
iv. When the alleged less favourable treatment was occasioned, the Claimants were full-time salaried Circuity Judges, and as such were not part-time workers. They were not entitled to bring claims under the Part-time Worker Regulations and the Part-time Worker Directive.
v. The effective and predominant cause for the treatment, in any case, was not part-time status, but was the fact that the Claimants had been appointed as Circuit Judges after 31st March 1995.
Read the full decision here.
Andrew Allen KC has a successful employment and discrimination practice encompassing TUPE, contractual disputes, discrimination – including within partnerships, equal pay, restrictive covenants, unfair dismissal, redundancy, working time, minimum wage, breach of contract, parental and carer’s rights, remuneration and bonuses. He has significant experience of professional negligence claims relating to providers of legal services, trade unions and other employment advisers.
Alex Line specialises in the areas of employment and education law. He has extensive employment and discrimination law experience, having practised in these areas throughout his career at the Bar. He has a broad range of experience in education law matters, with particular expertise in the law relating to special educational needs. He is also well placed to assist with public law cases affecting these and associated areas.
News 1 Sep, 2023