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Less favourable treatment of part-time workers

Adrian Fryer

Adrian Fryer

It is not easy to imagine that the grumblings of a group of judges about their pay and conditions could be of wider relevance to other employers, but the recent case of Ministry of Justice v Dodds is an exception.


The claimants in the Employment Tribunal had been chosen as representatives of judges at various levels who had brought similar claims. Each of the claimants occasionally sat as judges at a higher level than their usual position (known as ‘sitting up’). For example, circuit judges were asked to ‘sit-up’ as high court judges on occasion. They claimed that, when sitting up, they were part-time workers and should not be treated less favourably in terms of pay than comparable full-time judges in the higher court. Their pay was lower than that for full-time judges in the higher court and they didn’t get a pro-rata uplift for the time they spent ‘sitting up’. The ET found in their favour.

However, the Employment Appeal Tribunal disagreed with these findings. In particular, the EAT did not agree that the judges were part-time workers in the roles which they were asked to ‘sit-up’ in in higher courts. They therefore could not claim less favourable treatment as part-time workers and compare their rate of pay whilst ‘sitting up’ with that of permanent full-time judges in the higher court. Crucially, the EAT considered that  acting-up in a higher court on occasion was not a distinct employment which could be looked at separately from their main role.

If a different decision had been reached this could have had far-reaching consequences for all employers with employees whose role may, on occasion, involve them acting up in a higher (and better paid) position. Employers would be faced with either having to increase the pay of such persons every time they temporarily took on some more senior duties or avoid the possibility of them having to act-up at all (something which would make life very difficult practically speaking). Luckily ‘justice’ appears to have been done!


Adrian Fryer, Partner & Head of Employment

t: 0151 224 0539