Ministry of Justice & Anor v R Dodds & Ors

When deciding whether a worker is part-time under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a tribunal must not isolate work alleged to be part-time where the employer says it forms part of a full-time salaried role. It must assess the totality of the work and have regard to the employer’s relevant custom and practice.

A distinction between core and other duties does not establish separate part-time employment. The Framework Agreement annexed to Directive 97/81/EC requires identification of the worker’s normal hours before comparison with a full-time worker. On causation, the issue is the actual ground for less favourable treatment, not whether that ground is fair or satisfactory. An aim cannot be rejected as mere cost-saving where its proper characterisation includes resource allocation and administration.

Four sample claimants were salaried judges who periodically performed judicial work at a higher level: three circuit judges acted in the High Court under section 9(1) of the Senior Courts Act 1981, and a district judge sat as a recorder. They were paid at the rate of their salaried offices for sittings within salaried time.

The London (Central) Employment Tribunal upheld their claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It held that they were part-time workers when sitting up, that they had valid full-time comparators, and that the pay differential was because of their part-time status and unjustified.

The Ministry of Justice and Lord Chancellor appealed. The central issue was whether the claimants’ higher-level sittings were distinct part-time work or formed part of their salaried judicial roles.

1. Appeal allowed and claims remitted. The Employment Tribunal erred in holding that the claimants were part-time workers when sitting up. It wrongly confined its inquiry to the periods of alleged part-time work. Where the employer contended that those duties formed part of a full-time salaried office, the tribunal had to consider the totality of the work and the relevant custom and practice.

2. The Tribunal’s core/non-core duties distinction had no basis in the statutory test. Duties contemplated by a judicial office’s terms and conditions do not become a separate part-time role merely because they are ancillary, intermittent, performed in another jurisdiction, or involve work ordinarily done by a higher-paid office-holder.

3. The Tribunal failed to consider material aspects of custom and practice, including the terms of appointment, the fact that sitting-up days counted towards annual salaried sitting commitments, and the policy that sittings within salaried time were remunerated at the salaried rate. It also wrongly treated the perceived absence of a fair basis for different treatment of section 9(1) and section 9(4) judges as relevant to status.

4. Clause 3 of the Framework Agreement annexed to Directive 97/81/EC did not validate that approach. A worker’s normal hours must first be identified by reference to the employment’s nature, terms and conditions and potentially custom and practice; comparison cannot be founded solely on selected higher-level sittings.

5. The Tribunal’s comparability conclusion disclosed no independent error under Matthews, but could not stand because it was predicated on the erroneous status finding. Its causation conclusion was also flawed: it assessed whether the employer’s explanation was satisfactory rather than identifying the actual ground for treatment, overlooked the treatment of salaried section 9(4) judges, misread sections 9(1), 9(5) and 9(6) of the Senior Courts Act 1981, and gave inadequate reasons concerning the recorder.

6. The justification finding was vitiated. The Tribunal wrongly treated administrative difficulties as an unpleaded separate aim and wrongly characterised the fair allocation of resources aim as impermissible cost-saving. Outstanding factual issues made remittal necessary. The claims were remitted to a differently constituted Tribunal to determine the remaining generic issues.

• Employment Appeal Tribunal: Allowed the appeal and remitted the claims for redetermination: [2023] EAT 31.
• Employment Tribunal, London (Central): Decision sent to the parties on 16 December 2021. It upheld four sample claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. No citation is stated.