Pay dispute between government and judges rumbles on

A pay row between the government and judges who filled in doing higher-level work continues to rumble on after an employment appeal tribunal decided that the matter must be redetermined.

Last year an employment tribunal ruled that certain judges ‘sitting up’ were treated less favourably in terms of remuneration than colleagues who sat full-time in those higher courts. This week the employment appeal tribunal remitted the case after overturning the lower court’s findings that the claimants were part-time workers in their ‘sitting up’ capacity.

The Honourable Mrs Justice Heather Williams DBE said in her 82-page judgment: ‘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.

‘In my judgment the [employment tribunal judge’s] approach confuses sitting in different jurisdictions with undertaking different jobs. There are many instances where judicial office holders sit up in their jurisdictions, and some where they sit down. Whilst regard must be had to the applicable terms and conditions and the custom and practice in each instance, on the face of it, the sheer fact that a salaried judge is undertaking work in another jurisdiction does not mean that they are a part-time worker in relation to both this and their salaried role.’  

Williams said the employment tribunal judge focused on the alleged part-time work rather than considering the totality of the claimants’ work in circumstances where the government’s case was that the sitting up was part of their full-time salaried office.

However, she did not accept the government’s contention that the employment tribunal judge erred in failing to address the government’s case on the conflicts of interest that could arise if salaried judges were paid differently depending on the type of work they did.

In the lower court judgment, the tribunal judge said he heard some evidence, ‘necessarily largely speculative in nature’, concerning difficulties that might arise if circuit judges were paid at a higher rate when they sat in a higher capacity if those same circuit judges were responsible for allocating cases to be heard by themselves or colleagues.

‘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,’ the employment tribunal judge said in his judgment.

The appeal judgment states that the five judges at the centre of the proceedings were selected as sample representatives from a larger number of judges who sit at various levels in the judiciary and brought similar complaints.