It is not easy to imagine that the grumblings of a group of judges about their pay and conditions could be of wider relevance to other employers, but the recent case of Ministry of Justice v Dodds is an exception.
The Case
The claimants in the Employment Tribunal had been chosen as representatives of judges at various levels who had brought similar claims.
Each of the claimants occasionally sat as judges at a higher level than their usual position (known as ‘sitting up’). For example, circuit judges were asked to ‘sit-up’ as high court judges on occasion. They claimed that, when sitting up, they were part-time workers and should not be treated less favourably in terms of pay than comparable full-time judges in the higher court.
Their pay was lower than that for full-time judges in the higher court and they didn’t get a pro-rata uplift for the time they spent ‘sitting up’.
Each of the claimants occasionally sat as judges at a higher level than their usual position (known as ‘sitting up’). For example, circuit judges were asked to ‘sit-up’ as high court judges on occasion. They claimed that, when sitting up, they were part-time workers and should not be treated less favourably in terms of pay than comparable full-time judges in the higher court.
Their pay was lower than that for full-time judges in the higher court and they didn’t get a pro-rata uplift for the time they spent ‘sitting up’.
The Decision
The ET found in their favour.
However, the Employment Appeal Tribunal disagreed with these findings. In particular, the EAT did not agree that the judges were part-time workers in the roles which they were asked to ‘sit-up’ in in higher courts. They therefore could not claim less favourable treatment as part-time workers and compare their rate of pay whilst ‘sitting up’ with that of permanent full-time judges in the higher court. Crucially, the EAT considered that acting-up in a higher court on occasion was not a distinct employment which could be looked at separately from their main role.
However, the Employment Appeal Tribunal disagreed with these findings. In particular, the EAT did not agree that the judges were part-time workers in the roles which they were asked to ‘sit-up’ in in higher courts. They therefore could not claim less favourable treatment as part-time workers and compare their rate of pay whilst ‘sitting up’ with that of permanent full-time judges in the higher court. Crucially, the EAT considered that acting-up in a higher court on occasion was not a distinct employment which could be looked at separately from their main role.
What Can We Learn?
If a different decision had been reached this could have had far-reaching consequences for all employers with employees whose role may, on occasion, involve them acting up in a higher (and better paid) position.
Employers would be faced with either having to increase the pay of such persons every time they temporarily took on some more senior duties or avoid the possibility of them having to act-up at all (something which would make life very difficult practically speaking). Luckily ‘justice’ appears to have been done!
Employers would be faced with either having to increase the pay of such persons every time they temporarily took on some more senior duties or avoid the possibility of them having to act-up at all (something which would make life very difficult practically speaking). Luckily ‘justice’ appears to have been done!
"The key point for employers is that they do not have to pay employees on the basis of the more senior role when sometimes acting up in a higher and better paid position or on occasion carrying out duties of a more senior role."
Maeve Vickery, Employment Lawyer, Vista
