Judges discriminated against by the MoJ

Southby and others v Ministry of Justice, November 2022

A group of part-time fee-paid judges of the Special Educational Needs and Disability Tribunal (“SEND”) have succeeded in their part-time worker discrimination claims against the Ministry of Justice.

Andrew Sugarman represented the judges who claimed they were treated less favourably than their full-time colleagues because they were not paid for preparation time or for the time spent writing up decisions following hearings, in contravention of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

SEND forms one half of the Health, Education and Social Care Chamber of the First-tier Tribunal (the other being the Mental Health Tribunal). It is currently home to 13 full-time salaried judges but has also been heavily reliant on fee-paid judges to service the increasing workload over recent years. There are currently over 110 fee-paid part-time SEND judges.

Despite being presented with a bundle of around 10,000 pages, circa 250 pages of witness evidence and hearing 5 days of evidence, Employment Judge Williams pithily summed up the essence of his conclusion: part-time fee-paid judges must do 1½ days’ work in order to receive a day’s pay, whereas their full-time salaried colleagues get a day’s pay for a day’s work. That constitutes less favourable treatment, and he had no difficulty in concluding part-time status was the reason for it. 

He also rejected the MoJ’s attempts to objectively justify the treatment. It advanced various aims and relied on the budgetary implications of having to pay fee-paid judges significantly more for past and future sittings, and the potential consequences of the same for managing the jurisdiction. The financial consequences will no doubt be significant. Some fee-paid judges have been sitting in SEND for many years – one of the Claimants began sitting in 1999 – and there are nearly 10 times as many fee-paid judges as there are salaried.

The fair allocation of resources was accepted as a legitimate aim but the Tribunal was “unable to accept that requiring fee-paid judges in SEND to work unpaid hours on non-sitting days in order to complete their cases is consistent with, or a means to achieve, a fair allocation of resources”. Further, “it is almost inevitable that paying a judge to do work which was formerly unpaid may have budgetary consequences…. the respondent must decide how it allocates its available resources but it must do so in a non-discriminatory way”.

Pay in the First-tier Tribunal is currently subject to a review, so from the Claimant’s perspective this judgment is timely. Whatever new system is devised, it will have to be one that ensures equal treatment of fee-paid judges with their full-time salaried colleagues. For many years, the SEND jurisdiction appears to have run on the goodwill of part-timers to get the work done, despite not being paid for significant amounts of it in the same way as salaried colleagues. That would not be acceptable in other walks of life and it ought not to be required of the judiciary either.

Andrew Sugarman is Joint Head of the Employment Team at Parklane Plowden.