The Scottish Ministers v Johanna Johnston

An appointment of a sheriff as a temporary judge under section 20B of the Judiciary and Courts (Scotland) Act 2008 does not affect the sheriff’s appointment or its terms. Acting as a temporary judge is an aspect of the work the sheriff may undertake. It does not create a separate concurrent employment relationship.

A tribunal may infer variation by conduct only where the evidence requires that inference when assessed against the original terms. Different work, location, training and management arrangements were insufficient where the same parties and remuneration continued. Regulation 2(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 requires regard to the employer’s actual custom and practice. It could not be applied on the false premise of two part-time engagements.

The claimant was a salaried full-time Sheriff. From 2013 she was appointed to act as a Temporary Judge of the Court of Session while continuing to receive her Sheriff’s salary. She claimed that, while acting as a Temporary Judge, she was a part-time worker who had been treated less favourably than permanent Court of Session judges.

The Employment Tribunal held, as a preliminary issue, that her original appointment had been varied by conduct and that she held two concurrent part-time appointments: one as Sheriff and one as Temporary Judge. The Scottish Ministers appealed. The central issue was whether the statutory scheme, the evidence of working arrangements, and regulation 2(2) permitted that conclusion.

1. Appeal allowed. The Employment Tribunal’s preliminary decision was set aside. A declaration was substituted that the claimant was not a part-time worker for the purposes of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, and her claim was dismissed.
2. Section 20B(7)(a) of the Judiciary and Courts (Scotland) Act 2008 provides that appointment as a temporary judge does not affect an appointment as Sheriff. That phrase encompasses the terms attached to the office, rather than merely the bare fact that the office continues to be held. The equivalent provisions in the earlier Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 had the same effect.
3. The statutory language of appointment to act as a judge, read with section 20B(5) and (6), showed that a temporary judge remains a Sheriff while exercising the powers of a Court of Session judge on particular occasions. The temporary appointment did not create a new and discrete employment relationship. The tribunal’s contrary construction was therefore an error of law.
4. Independently, the practical arrangements did not permit the necessary inference that the single full-time relationship had been replaced by two part-time relationships. Some matters changed, including the court, work and training. However, the parties and remuneration remained unchanged, and the evidence was at least equally consistent with a continuing single relationship on terms permitting occasional service as a temporary judge.
5. The tribunal also misapplied regulation 2(2). The required inquiry into the employer’s custom and practice had been founded on the erroneous assumption that there were two engagements. Once that premise failed, the claimant remained identifiable as a full-time Sheriff and could not pursue the alleged less favourable treatment claim.

• Employment Appeal Tribunal: allowed the Scottish Ministers’ appeal and set aside the preliminary ruling: [2024] EAT 121.
• Employment Tribunal: held that the claimant held two concurrent part-time appointments and was a part-time worker. Its judgment was sent to the parties on 28 February 2023.