The Ministry of Justice v Burton & Anor (Part Time Workers)

A part-time worker is treated less favourably where payment for work is discretionary but a comparable full-time worker has an entitlement to paid time for that work. A more favourable contractual term will offset that disadvantage only in the limited case where the terms are so well balanced that there is no less favourable treatment overall.

Where an established disadvantage must be quantified from limited and imprecise evidence, an Employment Tribunal may make a broad, reasonable assessment. Its figure will stand unless it is manifestly excessive or manifestly too low. A reconsideration decision founded on the mistaken view that an issue was never raised must be reconsidered unless the result was plainly and obviously right.

The respondents were former fee-paid, part-time chairmen of the Residential Property Tribunal. Their lead claims under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 compared their remuneration with that of salaried First-tier Tribunal Tax Judges.

An Employment Judge held that the respondents were less favourably treated because payment for writing decisions in Leasehold Valuation Tribunal cases was discretionary, and assessed the additional payment at two-thirds of a daily fee for each full sitting day. The Judge refused reconsideration of that decision.

The Ministry of Justice appealed the findings of disadvantage, quantification and the refusal to reconsider. Mr Engel cross-appealed aspects of the reconsideration decision, including half-day sittings, rent assessment cases, non-substantive sittings and mitigation.

1. The Ministry of Justice’s appeals were dismissed. It was sufficient to establish less favourable treatment that Property Judges could obtain payment for decision-writing only through discretion, whereas comparable Tax Judges had an entitlement to time allocated and paid for that purpose. The Employment Judge was entitled, as a factual matter, to find that cancellation fees did not eliminate that disadvantage.

2. The Employment Judge was entitled to quantify the necessary payment by a broad assessment. The evidence was sparse and did not permit a precise calculation of the effects of short sittings, simple cases, complex cases and work done by Tax Judges in their own time. A tribunal is nevertheless required to make its best assessment where the primary evidence establishes a compensable disadvantage. The correct appellate question was whether the resulting figure was manifestly excessive or manifestly too low. The two-thirds figure met neither description.

3. The challenge concerning multi-day hearings also failed. The Weekday Cross example, viewed alone, did not support a payment of two-thirds of a daily fee for every day of a multi-day hearing. But the Employment Judge had refused reconsideration because the point had not been argued at the original hearing. That was a proper exercise of discretion and disclosed no error of law.

4. Mr Engel’s cross-appeal succeeded on grounds 1 to 3. The Employment Judge had wrongly rejected the half-day, rent assessment and non-substantive-sitting points on the basis that they had never been advanced. They had been advanced. The EAT could not substitute its own decision because the merits depended on evidence heard by the Employment Judge and the original reconsideration exercise. Those issues were remitted for further determination.

5. The cross-appeal on mitigation failed. Listing mitigation for a later remedy hearing was a discretionary case-management decision, not a final determination and was not precluded by issue estoppel.

6. Despite inadequacies in the Employment Judge’s earlier handling of a recusal application, a fair-minded and informed observer would not conclude that there was a real risk of bias. The remitted issues were therefore sent to the same Judge, who had heard the relevant evidence.

• Employment Appeal Tribunal: The Ministry of Justice’s appeals against the merits and reconsideration decisions were dismissed. Mr Engel’s cross-appeal succeeded on three of four grounds. The affected reconsideration issues were remitted to the same Employment Judge.
• Employment Tribunal: Reasons delivered on 13 November 2014 held that the claimants had been less favourably treated in respect of decision-writing fees and assessed an additional fee at two-thirds of a daily sitting fee. Reconsideration was refused in reasons delivered on 16 January 2015.