Labour & European Law Review Weekly Issue 455 03 February 2016
In a claim of less favourable treatment, part-timers have to make a comparison between their treatment and that of a comparable full-timer. In Ministry of Justice (MoJ) v Burton and Engel, the Employment Appeal Tribunal (EAT) held that part-time property judges, who were only paid for writing up judgments as a matter of discretion, had been treated less favourably than full-time tax judges who were entitled to be paid.
The two claimants, who had previously worked as part-time chairs of the Residential Property Tribunal, made a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
They claimed that part-time property judges, who were not automatically paid a fee for writing up judgements (instead it was a matter of discretion), were being treated less favourably than full-time tax judges of the Tax Chamber First-tier Tribunal who were nominally allocated between 1½ and 2 days for decision writing per day of hearing.
Having agreed that the part-time property judges had been treated less favourably, the tribunal judge held that the question was how long it should take a judge of reasonable competence to produce a judgment of appropriate length and content in the supposedly average case.
He decided, on the basis of the evidence in front of him, that the measure of paid time required to eliminate the less favourable treatment was between 4½ and 5 hours per sitting day which equated to two thirds of the daily sitting fee.
The MoJ appealed on both the decision of less favourable treatment (known as the liability decision) and the decision that part-time judges should be paid two-thirds of the daily sitting fee (the quantum decision).
With regard to the liability decision, the EAT held that the tribunal judge was entitled to come to the conclusion that the part-time judges had suffered less favourable treatment for the simple reason that the part-timers were only paid for writing-up time as a matter of discretion, whereas tax judges were paid as a matter of entitlement.
As for the decision on quantum, the EAT held that it is often difficult for courts to assess the amount that should be awarded with any certainty. In this case, it did not think that the judge was wrong to make a broad brush assessment. The claimants had argued that the appropriate amount of time was a day, but the judge rejected this on the basis that it did not allow for certain factors to be included, such as how often the sitting day went short. The figure he arrived at was therefore neither “manifestly excessive or manifestly too low”.
This case underlines the importance of identifying an appropriate comparable full-time worker in a claim of less favourable treatment brought by a part-time worker. In determining the value of such a claim, where it is difficult to produce a precise figure, an employment tribunal is entitled to adopt a “broad brush” approach to the assessment of quantum.