An employment tribunal has ruled that certain judges who filled in doing higher-level work were treated less favourably than full-time colleagues.

Employment Judge S J Williams, sitting in the London Central tribunal, said all five of the sample judges who brought claims should be treated as part-time workers within the meaning of relevant regulations.

In relation to four of the five, the less favourable treatment they experienced from the Ministry of Justice was found not justified on objective grounds. The tribunal held that there was no evidence that the MoJ had reviewed pay policies in light of the Part-Time Worker Regulations 1998. It is unclear whether the MoJ plans to appeal the ruling or change its policy with regard to how it pays judges who ‘sit up’ – in other words sit at a higher level than that for which their salaries are set. A spokesperson said the government was 'disappointed' and considering its response.

The test claimants were a handful of 50 judicial claimants, represented by London firm Leigh Day, who argue they are entitled to additional pay. The majority are circuit judges or senior circuit judges who have regularly acted as judges of the High Courts pursuant to s9 of the Senior Courts Act for no additional pay beyond their regular salary. They submit that when they ‘sit up’ they are part-time workers, and the government infringed their right not to be treated less favourably.

The tribunal heard that the High Court had operated in recent times persistently below its statutory complement of judges; there are currently 110 High Court judges compared with more than 500 'section nine' judges.

At the same time, both the volume and complexity of the workload has increased, and the practice of ensuring section nine judges do the less important or easier work has not been maintained.

Three of the claimants – Simon Barker, Jane George and Mark Everall – were circuit or senior circuit judges authorised to act as High Court judges.

Patrick Field is a circuit judge authorised to sit as a judge in the criminal division of the Court of Appeal, and Ian Atherton was a district judge who was also a recorder.

The claimants argued that the work they did when acting as High Court judges ought to be reflected in higher pay, and that the MoJ was getting their services ‘on the cheap’.

Section nine work, Judge Williams noted, was ‘very far from exceptional’ for some of the claimants and in Barker’s case was the mainstay of his job. The judge rejected the government’s submission that section nine work formed part of the claimants’ salaried work.

‘I cannot find on the evidence before me that the respondents’ policy of deployment was both ‘flexible’ and ‘fair’. Further, there was no evidence that the policy of paying the claimants only their base salary was either a suitable or a reasonably necessary means of achieving the aim of fair and flexible deployment.’