Mr Sugarman, of Counsel For the v Respondent — 2022

At a liability-only hearing before Employment Judge Williams sitting alone, the tribunal upheld the fee-paid SEND judges' complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It found that the claimants had to do preparatory reading and post-hearing write-up on non-sitting days, while comparable salaried judges did that work within their paid working time. The tribunal accepted evidence about typical reading and writing times, the settlement terms agreed in Judge Lloyd-Lawrie's COT3, and the limited value of short-hearing time gained.

The tribunal held that the claimants had been treated less favourably than comparable full-time judges and that the reason was that they were part-time workers. It estimated that a part-time SEND judge had to work about 10 hours 45 minutes to earn a day's fee, compared with 7 hours for a full-time judge to earn a day's salary. The respondent's reliance on the inherited historical fee structure and paid travel-time enhancements did not answer that comparison, particularly after remote hearings became the norm in March 2020 and travel payments largely ceased.

Objective justification failed. The tribunal accepted flexible deployment, fair allocation of resources, and reflecting the SEND jurisdiction's characteristics as legitimate aims, but held that retaining a regime that left fee-paid judges unpaid for reading and writing-up was not proportionate. It therefore dismissed the alternative contention that travel payments should have been pensionable, because that point did not arise once the main finding had been made. Remedy was adjourned to a later date.