Mr R Allen QC, with Chesca Lord, of Counsel For the v Respondent — 2024

The claimants brought complaints under regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, contending that when they "sat up" as section 9 judges of the High Court, as a recorder, or as a judge of the Court of Appeal (Criminal Division), they were part-time workers and should have been paid at the higher rate attached to the higher judicial office. The hearing was on liability only before Employment Judge Williams sitting alone.

The tribunal found that Mr Barker, Ms George and Mr Everall, when acting under section 9(1) of the Senior Courts Act 1981 as judges of the High Court, and Mr Atherton when sitting as a recorder, were part-time workers within regulation 2(2) PTWR. It held that for Mr Barker, Ms George and Mr Everall the appropriate comparator was a full-time High Court judge, and for Mr Atherton the appropriate comparator was a full-time circuit judge. The tribunal accepted that a large part of the work done by section 9 judges was exactly the same as that of substantive High Court judges, and that the differences relied on by the respondents were not of such importance as to prevent the work being broadly similar. It also found that the respondents treated these claimants less favourably by paying only their base salaried rate for that work.

The tribunal rejected the respondents' objective justification defence. It accepted that fair and flexible deployment of judges, fair allocation of resources, and reflecting differences in the judicial hierarchy were legitimate aims, but held that the policy of paying only the base salary was neither suitable nor necessary to achieve those aims on the evidence before it. The judgment noted that the respondents had not revisited the policy in light of the PTWR and that their treatment of section 9(4) deputy High Court judges, who were paid a daily rate based on a High Court judge's salary, undermined the explanation that section 9(1) judges were paid differently because of the nature of their work.

Mr Field's claim failed. The tribunal held that he could not compare his work as a section 9 judge in the CACD with a High Court judge sitting in the CACD as a comparable full-time worker, because if the High Court judge was full-time the work was not the same or broadly similar, and if the judge was part-time there was no comparable full-time worker. The tribunal therefore concluded that Mr Field was not treated less favourably within regulation 5 PTWR, whereas the complaints of Mr Barker, Ms George, Mr Everall and Mr Atherton succeeded.