Ministry Of Justice v Blackford (Part Time Workers)

A part-time worker may establish that treatment was on the ground of part-time status where that status was a significant, material and effective cause; it need not be the sole cause. An employer cannot justify different treatment by relying on a general assumption that part-time workers will be less available or flexible where direct evidence concerns the individual worker.

For the objective justification defence under Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the employer must establish that the measure was reasonably necessary and proportionate to a genuine business need. A tribunal may reject asserted operational reasons where cogent evidence is absent and the employer's own evidence shows a need for the worker's services.

The claimant, a barrister and part-time Recorder, was refused an extension of office after reaching compulsory retirement age. A full-time Circuit Judge was permitted to continue as a Deputy Circuit Judge. The Employment Tribunal held that the claimant had suffered unjustified less favourable treatment contrary to Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and awarded £36,796.67 compensation.

The Ministry of Justice appealed both liability and remedy. It alleged procedural unfairness, challenged the findings on availability, business need and justification, and contended that the remedy reasons and assessment of loss were invalid or erroneous.

1. Appeals dismissed. The Employment Tribunal made no material procedural error and was entitled to uphold the Regulation 5 claim.

2. The tribunal had resolved, rather than introduced, the issue of the terms on which the claimant could continue. It permissibly accepted the Ministry's argument that section 26(5) of the Judicial Pensions and Retirement Act 1993 allowed a Recorder to continue only in that office. On the evidence, there was ample work for both the claimant and the comparator. The guarantee of 15 sitting days therefore did not require a determination that the claimant would receive more favourable treatment.

3. The tribunal was entitled to reject the asserted distinction based on availability and flexibility. A general assumption that Recorders, as practising lawyers, would be less available than retired Circuit Judges was discriminatory and could not displace direct evidence of the claimant's own availability. It was also entitled to find that insufficient evidence established that an SSO ticket was a prerequisite for post-retirement work.

4. The objective justification findings disclosed no error of law. Although there was a legitimate business need to cover criminal work, the Ministry had not proved that refusing the claimant an extension was reasonably necessary or proportionate. Its own case for extending the comparator, the shortage of judicial resources and the backlog supported the conclusion that fee-paid judicial work was available.

5. The remedy judgment was valid. Rule 62(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 did not prevent the tribunal from announcing conclusions to enable calculation and later issuing written reasons. Written reasons are authoritative where subsequently supplied. The tribunal was entitled to assess loss by reference to the claimant's recent sitting pattern, discounted for the evidenced reduction in sitting days, and to find that he would have continued sitting and been reappointed for a second year.

• Employment Appeal Tribunal: Appeals against the Employment Tribunal's liability judgment sent on 14 October 2016 and remedy judgment sent on 6 December 2016 were dismissed.
• Employment Tribunal, London Central: Held that refusal to extend the claimant's appointment as a Recorder was unjustified less favourable treatment under Regulation 5 and awarded £36,796.67 compensation.