Part-time judges and remuneration in preparing decisions
The treatment of part-time employees in comparison to full-time employees was recently considered by the Employment Appeals Tribunal in the case of MOJ v Burton and Engel. This case dealt with pay for decision writing but would be relevant for any organisation employing workers part-time and in particular those with atypical pay arrangements.
Part-Time Workers Regulations
The applicable regulation is Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which broadly states that:
- A part-time worker has a right not to be treated less favourably than a comparable full-time worker; and
- This right will only apply if the treatment is entirely on the grounds that the employee is part-time and the treatment cannot be objectively justified.
Residential Property Tribunal
These cases relate to two part-time judges on the Residential Property Tribunal. The claimants alleged that they were treated less favourably than their full-time comparators. As there are no full-time Residential Property judges, previous case law has established that the comparable full-time worker in the case of a part-time Residential Property judge is a full-time judge of the First-tier Tax Tribunal.
First-tier Tax Tribunal
The dispute was about payment for decision writing time following hearings. Full-time judges on the First-tier Tax Tribunal are entitled to one-and-a-half to two days of payment for decision writing per day of the hearing. Part-time judges on the Residential Property Tribunal, however, were not entitled to payment. They had to apply for their fees for decision-writing time after the conclusion of the case and any payment made was at the discretion of their employer.
At the first hearing the claimants sought to claim a decision-writing fee of one day for each day of hearings. The Employment Tribunal (ET) judge did not accept the evidence of the claimants in relation to the time required to write up a decision and noted the largely anecdotal evidence provided by both parties. The ET judge instead sought to envision a “paradigm judge”, who would set an appropriate time for calculations to be based on. The ET judge considered that an appropriate award would be two-thirds of a day per day of hearing. The MoJ applied for reconsideration and this was rejected.
Employment Appeals Tribunal
On appeal, the MoJ argued that the claimants had not sufficiently proven that less-favourable treatment had occurred and that there was insufficient evidence for the findings made.
The Employment Appeals Tribunal (EAT) upheld the original decision, noting that they did not consider that the findings or calculations amounted to any error of law and that both were supported by sufficient evidence. The key point was that the payment to the part-time judges was discretionary and to full-time judges was an entitlement. This fact alone was sufficient to prove less-favourable treatment.
The EAT noted that the ET judge was “obliged to make an award if it appears from the primary evidence that there is such a loss, even if its quantification is imprecise.” Several examples were given of estimations being used in decision making by judges to support this assertion. As less-favourable treatment had clearly occurred, the ET judge was required to make the best calculation possible in light of the lack of detailed evidence before him. The ET judge had considered the factors highlighted by the MoJ and allocated weight to them in his consideration and so no error of law was made.
Points for employers to consider
It is clear from this decision that the calculation of loss in such cases turn on entirely anecdotal evidence if there is insufficient data available for a detailed calculation. It is vital that employers implement a way of gathering sufficient data to support their position in so far as possible. The great deal of discretion available to a judge where no such evidence exists should be a note of caution for employers who rely solely on anecdotal evidence to assess remuneration for employees, as they potentially risk facing an unknown award where those who record data are better placed to quantify their position.
The significant issue in this case was the fact that the claimants were not entitled to decision-writing pay, whereas full-time judges, albeit who worked for a different Tribunal, were. No objective reason for this difference appears to have been identified or argued and the mere fact of this difference was sufficient to support a finding of less-favourable treatment.
Great consideration should therefore be given to any difference in pay arrangements between employees of full-time and part-time status, even if all the employees in a particular group work part time; they might be able to compare themselves to full-time employees working in a different team for the same organisation.
In order to limit exposure, it is vital that any differential treatment, even that which employers may consider benign or uncontroversial, can be objectively justified. If this is undertaken, employers should be better placed to defend any such claim from part-time employees.
For more information on any of this issues raised in this article, contact Michael Tait by emailing [email protected] or phoning 0131 563 7601
Posted on Apr 18th, 2016 by Lyons Davidson