United Kingdom Employment Appeal Tribunal

(I) Liability

The Applicable Legislative Provisions

(i) Judicial Appointment and Retirement

The appointment of Recorders is dealt with in the Courts Act 1971.  Section 21 provides that Recorders can be appointed to act as part-time Judges of the Crown Court and to carry out such other judicial functions as may be conferred on them.  There is provision for the appointment of Deputy Circuit Judges in section 24 of that Act (as amended), which is also a part-time post. 

Recorders and Circuit Judges are both relevant offices for the purposes of section 26 of the Judicial Pensions and Retirement Act 1993 (“JUPRA”) which provides:

“(1) Subject to the following provisions of this section, a person holding any of the offices for the time being specified in Schedule 5 to this Act (a “relevant office”) shall vacate that office on the day on which he attains the age of 70 or such lower age as may for the time being be specified for the purpose in the enactments and instruments relating to that office, whenever passed or made.

…

(5) If, in a case where this subsection applies, the [appropriate person] considers it desirable in the public interest that the holder of a relevant office should continue in that office after his compulsory retirement date, he may authorise the person to continue in office, either generally or for such purpose as he may notify to the person, for a period not exceeding one year and not extending beyond the day on which the person attains the age of 75.”

Section 26(6) makes provision for further periods for continuation in office after the initial one year period but not extending beyond the day on which the person attains the age of 75. 

(ii) Part-time Workers

The provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) relevant to this appeal are contained in Regulation 5 and are in the following terms:

“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -

(a) as regards the terms of his contract; or

(b) as being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if -

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds. 

(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”

The Tribunal’s Judgment

“76. Ms Darwin submitted forcefully that the reason for the difference in treatment was that HHJ Wilkinson was a “different type of judicial resource” to the claimant.  That was because: (1) he could do SSO ticketed work; and (2) he was available at short notice for longer and/or more complex cases and could do more work.  We consider these in turn. 

77. We accept that the SSO ticked weighed in favour of the appointment of HHJ Wilkinson and that it was in the mind of the Presiding Judges and Ms Brar at the time when the decision was made to push him forward for appointment.  It was a genuine, legitimate reason, not tainted by discrimination and not applicable to the claimant.

78. However, it is far from clear that the lack of the SSO ticket weighed against the claimant.  In particular:

78.1. It was not mentioned in the reasons which were put forward by Ms Brar at the 30 September 2015 meeting as demonstrating the lack of a business case for him. 

78.2. It was not mentioned in the letter notifying the claimant that he had been unsuccessful.

78.3. It was not asserted by Ms Brar (or anyone else) in evidence at this hearing. 

If the SSO ticket were significant, and certainly if it were as significant as Ms Darwin now contends, it would have been a simple matter to tell the claimant.  He might have had to accept it as an unarguable fact.  The finding that it weighed for the comparator that he had the SSO ticket does not, in the circumstances here under consideration, persuade us that its absence was a factor which weighed against the claimant when his application came for decision on 30 September 2015.  It might have been so, but it has not been established by evidence. 

79. Has the respondent separately persuaded us that the SSO ticket was a pre-requisite of continued work as a judge in the Crown Court post-retirement age, even if not considered in respect of the claimant?  In a sense, this goes to the justification defence, but it is also relevant to the determination of the ground for the different treatment.  Our answer is: no.  Cases are decided on the basis of evidence and there is a dearth of evidence that might persuade us that the SSO ticket was such a pre-requisite and that its absence would therefore be adversely determinative of the claimant’s application in any event.  As set out in our findings of fact, we had scant material about the difficulty of covering SSO cases: we do not know what percentage of sitting days are spent on them; we do not know what, if any, percentage of the then-increasing backlog they formed; we do not know whether in any financial year any SSO cases were delayed, not listed or put off.  We did not hear that Circuit Judges were excessively required to hear SSO cases.  The material which the claimant showed us (and about which he told us) demonstrated that there is a huge need for general crime to be covered at the last minute.  If the SSO ticket were essential, we would have expected some clear evidence. 

80. It follows that although we accept that the presence/absence of the SSO ticket was a distinction between the comparator and claimant, the respondent, which here asserts it, has not proved that it is a ground why the business case was not made out for the latter and thus why he was not re-appointed. 

81. In respect of the distinction advanced by counsel and Ms Brar that HHJ Wilkinson would be more readily available, we find that this was based on a general assumption about full-time judges who were retiring from salaried office when compared to part-time judges who were expected to continue in practice.  Given the amount that the claimant had sat as a Recorder in the six months leading up to his retirement, we concluded that it was not an assumption which could legitimately be made about him.  That is, it seems to be incorrect.  Further, decisions of this sort should properly be based on evidence and not on assumptions.  If the issue were a neutral one, it might lie with the respondent to assert that it had made a mistake and that that mistake was itself the reason or ground for the less favourable treatment, but the assumption is not neutral: it is founded in the very distinction which is impugned, namely the preferential treatment of full-timers over part-timers.  So if reliance were placed on this reason (which was also not mentioned at the meeting or notified to the claimant), it would fall under the next head in that it would be an unjustifiable assumption.  For present purposes it tends to support the conclusion that the less favourable treatment of the claimant was on the ground that he was a part-time worker. 

82. Was the ground for the more favourable treatment of HHJ Wilkinson that he could, because of his previous experience (rather than his availability or flexibility which we have dealt with above), deal with more complex cases?  In the explanations given to us, this is linked, at least in part, to the notion that more complex cases tend to take longer and that Deputy Circuit Judges can do them because they can sit for longer.  To that extent, it would again be on the ground that the claimant was a part-timer and there was an inappropriate assumption against him.  On the other hand, we have accepted that the greater experience of a retiring Circuit Judge would mean that he was more likely to be an appropriate judge for the most complex cases if they could not be covered by the High Court or Circuit Judges in post.  The claimant was not told of this reason.  It is not reflected in the documents showing the decision against him.  It is mentioned as a positive for HHJ Wilkinson.  We were not told that these more complex cases were particularly difficult to cover.  We conclude that if it were part of the ground on which the claimant were not retained, it was a small part, so trivial that we need not consider it further. 

83. In summary in respect of Ms Darwin’s submissions, we conclude that the claimant was not a significantly different judicial resource from HHJ Wilkinson.  Once assumptions that were made in respect of part-timers are stripped out (limited flexibility; limited availability), there is only the SSO ticket left and we have found that that does not explain matters in a manner which causes us to conclude that it was the only ground or even a significant ground for the difference in treatment. 

84. We are influenced to a small extent in reaching our conclusion about the reason for the difference in treatment by the lack of evidence showing that any Recorder, with or without the SSO ticket, had been re-appointed at the compulsory retirement age.  To a yet smaller extent we are influenced by the lack of any reference in the administrative Guidance (whether in its headnote, at paragraph 6 or in the titles of the templates at Annex A and Annex B) to the possibility of applications for re-appointment by Recorders and by the failure to provide a suitable template for a Recorder’s business case.  More generally we reach our conclusions because of our rejection of the reasons advanced by the respondent (through Ms Darwin’s submissions and the evidence) for the difference in treatment.  More overwhelmingly, we are influenced by the unexplained use of the same statistical material to make a business case for the comparator but against the clamant, summarised in (but not confined to) our findings at paragraph 67 above. 

85. Conclusion: We are satisfied that a significant, material, effective ground for the difference in treatment between the claimant and the comparator was that the claimant was a part-time worker.” 

“Business need?

87. We accept, of course, that there was a business need for the respondent to cover the criminal (and civil) cases coming for hearing, to avoid an increasing backlog and to use its allocation of sitting days fully and efficiently, as Ms Joyce told us.  We accept that dealing with SSO cases (which the claimant could not) was a priority.  So too was dealing with bail cases and it was a priority in respect of which, at this time, the respondent was significantly falling behind.  That was something with which the claimant could deal.  These are all significant business needs, consonant with the delivery of criminal justice which, we accept, is the respondent’s business. 

Reasonably necessary?

88. We are not persuaded that the respondent has proved that it was reasonably necessary to require the claimant to hold the SSO ticket or that there was any other reasonable necessity for not making a business case for him.  Our reasons are as follows:

88.1. The respondent has not persuaded us that there was a reasonable business need that judges kept on (which we use to include extensions, new appointments and re-appointments) after retirement age must have the SSO ticket.  The mere fact that all recent Deputy Circuit Judges were so ticketed does not establish it: indeed, it might tend to a conclusion that the need was satisfied.  The respondent could have so persuaded us, by provision of cogent evidence in the form of statistics about the number of cases; the number of sitting days; the backlog; the imbalance of SSO cases beyond judicial capacity.  It did not do so. 

88.2. Alternatively, it could have shown that no general crime cases were turned away or left uncovered by judges or adding to the backlog and so on.  The fact that the bail case target was being missed tends to support the business case that the respondent made to the effect that it needed more Recorders and more Circuit Judges generally, while putting forward a business case for HHJ Wilkinson’s new appointment.  The complement of the criminal judiciary was short of what was required, we accepted from the business case for HHJ Wilkinson.  The criminal judiciary was hard pressed, but we have not been shown that it was so only or predominantly in respect of SSO cases.  It appears to be across the board, including for general crime.  That is indicated by the fact that the respondent was applying to lift the ceiling for which Recorders could sit, not said to be just in respect of SSO-ticketed Recorders. 

88.3. Further, we find the reasons given to the claimant were incomplete and therefore partial or misleading.  For the most part (save in respect of the SSO ticket) the same business case could have been made for the claimant as was made for HHJ Wilkinson, but instead identical facts were presented differently to support different conclusions.  The claimant was in effect told that there was or would soon be no shortfall of judges to deal with the criminal caseload, but that was incorrect - at least, if, as we have accepted, what was put to the Lord Chancellor and Lord Chief Justice on behalf of HHJ Wilkinson was correct. 

88.4. It is more difficult for the tribunal to accept that something is reasonably necessary when it would have been easy (and not in any way offensive or undermining offensive) to have told the claimant, but he was not so informed about the need for an SSO ticket, or dealing with more complex cases for that matter.  Of course, as a matter of logic and precedent, it could still be reasonably necessary for continued appointment that the judge must have the SSO ticket, but cogent evidence should be provided if an account suggested, albeit ineffectively as we found, for the first time in witness statements (not having been put in contemporaneous internal notes, notified to the claimant or pleaded) is to be relied upon.  There was no such cogent evidence. 

88.5. We accept that good availability and flexibility with dates and as to where the Judge would sit, was reasonably necessary.  We deduce that HHJ Wilkinson would not have been appointed if he were not so available.  However, the respondent did not know about the claimant’s position: rather, if it considered the matter at all, it did so on the basis of a discriminatory assumption.  His history of sitting was not something which (if it were considered, as to which we are unsure) could properly have been used against him in view of the number of times that he had sat in the last half year.  Further, it was not something that was reported to him. 

88.6. Finally, under this head, we are not persuaded that it was shown to be reasonably necessary that the claimant be rejected because there was a sufficient judicial complement to use the region’s sitting day allocation.  We refer to our finding that a number of salaried criminal Circuit Judges in the South East region were applying to reduce their sittings from full-time to a lesser percentage at precisely the same date as the claimant sought re-appointment.  A 10% reduction for one judge would have created a need for 21 additional sitting days per annum; a 20% reduction, 42 days.  No reason has been suggested as to why the wishes of the salaried judiciary were rejected and they were compelled to work more days that they wanted to do, at the very time when the claimant who wished to work was not allowed to do so.  The shortage of Circuit Judges, reduced pool of Recorders and backlog of cases in the Crown Court were the only factors recorded in respect of rejecting these applications.  Each could equally have counted in favour of the claimant.  Rather than tending to show the achievement of a reasonable business need for the non-appointment of the claimant (even without the SSO ticket), this appears to show, to use a phrase we suggested to Ms Brar, a lack of joined-up thinking.  Ms Darwin submitted that this is not how the claimant had initially put his case.  We agree that it was not.  We are satisfied that that is because he is not here putting his case, but rather using material which became available to him in the course of the proceedings to undermine the respondent’s assertion about the existence of a business need (not pleaded), that it could fully use its allocation of sitting days without re-appointing him. 

Proportionality?

89. The claimant could do bail cases; he could do fraud cases; he had good availability and flexibility.  The respondent had backlogs and a shortage of judicial resources.  We have not found any basis on which we could say, in this case, that the respondent has established that it was a proportionate means of achieving the respondent’s business aim that the claimant was refused a business case that would have enabled him to go on sitting.  We make clear that we are deciding just this case.  As our findings of fact and individual conclusions above make clear, we are substantially pushed towards the conclusion which we have reached by the lack of evidence about the need for SSO tickets upon which the respondent now relies so heavily.  The evidence we received tended to establish that there was no business need to refuse the claimant, because there was, on the respondent’s own case as made out a few days later for the comparator, surplus work to be done and a shortage of judicial resources.  Further, although, of course, it is for the respondent, not us, to make proper decisions and allocate its resources appropriately, if the respondent had enabled the claimant to be re-appointed, it could probably also have accommodated some full-time criminal Circuit Judges seeking to reduce their working percentage.  The refusal to put forward the business case was the opposite of proportionate: the discriminatory effect on the claimant (the loss of his part-time work) has not assisted the respondent with any identifiable business aim and is not outweighed by any identifiable benefit.” 

The Respondent’s Arguments on Appeal

The Claimant’s Response in the Liability Appeal

(II) Remedy

The Tribunal’s Judgment

“2. It transpired during Ms Darwin’s cross-examination of the Claimant that she appeared to have misunderstood our judgment on liability.  We had held that the failure to extend the Claimant’s appointment as a Recorder was less favourable treatment on the ground that he was a part-time worker.  Ms Darwin started to question the Claimant on the basis that we had held that, if not the subject of unlawful discrimination, he would have been reappointed on the same terms as a Deputy Circuit Judge, at least to the extent that he would have had a zero hours’ contract (that is, with no guaranteed minimum number of sitting days).  We had not so held, as we thought we had made clear from our statement of the law at paragraph 6; description of how the matter was not pursued at paragraph 68; conclusion at paragraph 90.1; and the terms of reserved judgment.  We had accepted that the only way that a Recorder could be reappointed was on a Recorder’s terms.  The detail changed recently, but for someone appointed when the Claimant was appointed, the terms both required and guaranteed a minimum of 15 days a year.  We held that the Claimant would have been reappointed on his Recorder terms because:

● We had accepted the law from Ms Darwin, as being that Recorders could only be extended as Recorders on their existing terms and could not be appointed on terms applicable only to current Circuit Judges or Deputy Circuit Judges;

● Had the defence been pursued at the liability hearing on the basis that the Recorder’s 15-day guaranteed minimum was the reason for that different treatment as between the Claimant and the comparator District Circuit Judge, so that if reappointed it would have had to be on Deputy Circuit Judge terms, we would have had to make appropriate findings of fact.  It would have been relevant to bear in mind that it was not mentioned when their respective applications were considered or in the letter notifying the Claimant that his application was rejected.  However, if it were made out on the facts, then as recorded at paragraph 68 of the Reasons, we would have wanted to consider whether that reason for differential treatment was itself unjustifiably discriminatory.  Since, after an initial exploration, Ms Darwin did not prosecute the defence on that basis, we did not decide the matter, making clear that the issue of the lawfulness and relevance of the different terms applicable to a Deputy Circuit Judge was not before us. 

● The Claimant’s case was pleaded on the basis of the existing law, namely that he should have been granted an extension as a Recorder - the only position for which he could apply.  Paragraph 3 of the Particulars, recited that he had requested to extend his sittings as a Recorder and alleged that the decision to reject that request was part-time worker discrimination.  His application for extension, written on 2 September 2015, was to extend his term of office as a Recorder.  He had not applied to be and did not suggest that he had to be or should have been appointed as a Deputy Circuit Judge or on those terms. 

● Further and alternatively, avoiding less favourable treatment of part-time workers does not mean that the Claimant and comparator have to be treated identically, but rather that the Claimant be treated not less favourably than the comparator. 

3. Ms Darwin then advanced that appointment on Deputy Circuit Judge terms was the only way the Claimant had put his case at the liability hearing, referring to paragraphs 24 and 25 of the Claimant’s Note (for closing submissions) to the effect that the Respondent could have limited any reappointment to the Claimant making himself available purely on an ‘as and when required’ basis.  We did not understand and do not accept that that is how the Claimant was putting his case.  Rather, his case was put as at the third bullet-point above and as at paragraph 18 of the Note to the effect that the Claimant was denied the possibility of sitting beyond his retirement whereas his comparator was afforded that possibility.  At paragraphs 24 and 25, Mr Crossfill was responding to the Respondent’s argument that the only basis upon which it could, in accordance with the law, have extended the Claimant’s appointment was on the same terms and conditions as he already had as a Recorder.  He was addressing, not accepting, an argument about how the Claimant was different from the comparator. 

4. In further exchanges, Ms Darwin made clear that she still wished to cross-examine on the basis that the Claimant would only have been reappointed on Deputy Circuit Judge zero hour terms, contrary to our actual conclusion.  For the Tribunal I proposed that while she could not by this method undermine the conclusion we had reached, she would be permitted to cross-examine and we would consider that position in the alternative, lest we be held to have been in error as to our primary finding.  Ms Darwin requested an adjournment which we granted.  When she returned, Ms Darwin informed the Tribunal that she would not ‘at this time’ pursue her proposed line of questioning.  We now urged her to do so: it did not seem reasonable or proportionate to plan to hold some point in reserve, possibly dependent upon the outcome of an appeal.  If, as it now was, the dispute was identified to the Tribunal and if, as Ms Darwin appeared to wish to submit, it was relevant to remedy, it was reasonable, proportionate and therefore desirable for the Tribunal to be put in a position to make all relevant decisions.  Ms Darwin resolutely declined to resume her former intended stance.  She would not seek to advance the Respondent’s case on any basis but that the Claimant would have been appointed as a Recorder on the terms applicable to Recorders in the legislation.  Later she objected to some of Mr Crossfill’s cross-examination on the basis that he appeared to be enquiring about the zero hours’ position.  We declined to stop him, explaining that since we had considered it reasonable, proportionate and therefore desirable for her to proceed on that basis, we could hardly deter the Claimant from doing so.”

“16. If re-appointed, the Claimant would have sat as a Recorder as much as he could.  He had ceased to sit as an Immigration Judge in March 2015 and did not apply to extend that role.  He preferred to sit rather than to pursue the more exhausting role, as he experienced it, of a practicing barrister. 

17. The Claimant told us that the demand for Recorder sittings continued at a high level through 2015 and 2016.  He had hearsay evidence, not challenged in cross-examination, that the volume of emails offering last minute sittings was as high now as when he was last working as a Recorder and two Listing Officers had informed him that there is a shortage of Recorders across the whole of the South East Circuit.  We accept that the Claimant is giving a truthful account of what he had been told and we know of no reason why those of whom he enquired should have been untruthful. 

18. Ms Brar gave evidence of new Circuit Judge appointments, but, as indicated above, without taking into account retirements.  There was a long list of retirees in the bundle.  The result is that it is unclear whether the actual number of Circuit Judges available in the South East and London Crown Courts have gone up or down.  We accept that the sitting day allocation for the South East and London has reduced by 2% this year (2016-17) and is likely to reduce again next year.  We do not conclude that this necessarily means that the availability of fee-paid sitting days has reduced, because it would not have done so if the number of Circuit Judges (or the percentages at which some of them sat) had reduced. 

19. Considering these two accounts, we are not persuaded that there would have been any significant reduction in available sitting days for Recorders since the time when the Claimant retired, but we conclude that a probable 2% reduction is made out. 

20. Deputy Circuit Judge Wilkinson sat for 83.5 days in March to October 2016, 56 of them requiring an SSO ticket.  Deputy Circuit Judge Eccles sat in Oxford Crown Court for 39 days in the five months from May to September 2016, thus averaging about eight days a month.”

“25. The system for allocating work to Deputy Court Judges is different.  Ms Brar explained that they are not invited to book ahead and are not sent the emailed list of vacancies.  Rather, if hearings are still uncovered after Recorders have had the opportunity to respond, Ms Brar’s team telephones individual Deputy Circuit Judges with the uncovered hearings in mind and invites them to sit on a particular case.  She did not tell us how the team selected which Deputy Circuit Judge would be phoned.  It could contribute to the widely varied sitting figures which we saw.  It might work less neutrally or even-handedly than the Recorder booking system, because individuals are chosen for offers of work.  In any event, Deputy Circuit Judges are, at least in theory, at the bottom of the pecking order for sitting allocation.  In order for DCJ Wilkinson to sit 83.5 days in seven months (pro-rating to 143 days per annum) at least that number of days were not covered by the regions’ High Court Judges, Circuit Judges or Recorders. 

26. Ms Brar did not volunteer, but admitted in cross-examination, that the Respondent has less than its full complement of Circuit Judges in the regions with which we are here concerned.  The complement is calculated by factoring the sitting days at 80% for salaried Circuit Judges and the rest for fee-paid judges (Recorders and Deputy Circuit Judges).  On this basis, the complement is short of Circuit Judges by 2% for the South East region and 8% for the London region, where the comparator and Claimant could also sit.  That means that a greater number of days have to be covered by fee-paid judges and, as we found at the liability hearing, there is also a reduced complement of Recorders.”

“How much would the Claimant have sat on initial reappointment?

38. We have determined that absent discrimination the Claimant’s post-retirement appointment would have been effective from mid-January 2016.  In calculating how much he would have sat, we are satisfied that it does not assist to have regard to the average sittings of other Recorders and that it is unhelpful to consider the long history of the Claimant’s sittings.  We prefer to work with his recent sitting history which reflects what he was doing, wanted to do and would have gone on doing.  We consider that we should bear in mind at least one full year of sittings, to allow for any seasonal variations or fluctuations.  We have the figures for the last seven months and before that the figures for the previous full year.  Pro-rating the last year appropriately produces an average of about 100 sittings per year.  We factor in Ms Brar’s figure of a 2% decline in sitting days and reduce that figure accordingly.  So we conclude that in January - December 2016 the Claimant would have sat 98 days, spread proportionately across the year (which we mention to help with the calculations based on changes in the rate of Recorders’ fees).

Would the Claimant have been reappointed?

39. The Claimant would have been reapplying in September 2016 for a further year’s sitting from January 2017.  We are not persuaded that there would be any reduced business case for the Claimant.  The comparator (at the bottom of the pecking order in terms of allocation of work) sat 83 days in 7½ months, averaging more than 10 days a month; DCJ Eccles averaged 8 days a month or 96 days for a full year.  They were obviously ready, willing and able to sit as Deputy Court Judges and this information plus the Claimant’s hearsay evidence shows that there is a lot of work for Recorders.  It tends to show need.  We accepted from Ms Brar that it is likely that the total number of sitting days allocated to the region will reduce again, although she was not in a position to indicate by how much and the Claimant has persuaded us that there continue to be shortages of Recorders across the circuit.  It is not said that there would be no work or less work for judges without the SSO ticket.  As at the present date, when the Claimant would be seeking reappointment, the position is not identifiably different from what it was at this time last year.  We conclude that demand and business need are such that, absent discrimination, the Claimant would be reappointed for a second full year, effective from mid-January 2017. 

How many days would the Claimant have worked in 2017?

40. We recognise that we are engaging in a speculative exercise.  If we were wrong in our determination that the Claimant would be reappointed as a Recorder, we would consider that there was an 80% prospect that he would be reappointed.  It remains highly likely, because we know no reason why it is not.  We consider that the way forward is by the alternative calculations:

● If reappointed in accordance with our conclusion at paragraph 39 above, the Claimant would, on the balance of probabilities, have sat for 80 days in the year.  This takes account of some probable reduction in sitting days and the 30 day Recorders all coming fully online.

● Alternatively, if we reduce the prospect of reappointment to 80%, we would feel it appropriate to reduce the other variables.  So we would abide by the 98 days sitting that we forecast for the present year.  Factored at 80%, this would again produce a total of 80 sitting days.”

“47. Having informed the parties of our conclusions, as at paragraphs 38 - 46 above, we invited them to do the arithmetic, bearing in mind the need to gross up sums above £30,000.  They were unable to reach a conclusion on the day and undertook to notify the tribunal of the final amount by email, for incorporation into the Judgment.  They have now done so and we record, by consent, that after calculations which reduced for taxation all save the first £30,000, then grossed up appropriately, the Respondent is ordered to pay £36,796.67 compensation to the Claimant.”

The Remedies Judgment

(1)     The Respondent’s own assessment of the need for work to be done by the fee-paid and salaried judiciary as determined by the sitting day allocations.  Ms Brar’s evidence was that the sitting allocation had reduced for the financial year 2016-17 with further anticipated reductions in the following financial year. 

(2)     The ways in which the Respondent allocates the pool of available work between different types of judicial resources.  Reference was made again to the “informal operating model” in terms of which 80% of the allocation was met by Circuit Judges and only 20% by Recorders.  The Tribunal had erred in finding that the reduction in sitting day allocation did not mean that the availability of fee-paid sitting days had reduced in any event, sitting days had to be fairly distributed between all Recorders particularly with a view to ensuring that they all have an opportunity to undertake their guaranteed minimum sitting days.  The position of other Recorders is highly relevant to the number of days when the Claimant was likely to sit and so the Tribunal had erred in finding it was meaningless, the Respondent was entitled to give preference to Recorders under the compulsory retirement age. 

(3)     The Respondent’s criteria for extending appointments and assessment that there was no business need for the extension of the Claimant’s appointment.

(4)     The increased number of salaried judicial resources that were available to the Respondent to undertake a reduced amount of work.  There was evidence of the number of new Circuit Judges that were due to take up posts. 

The Claimant’s Response to the Remedy Appeal

DISCUSSION

(I) Liability

“102. … The extent to which there has been procedural unfairness is not necessarily a matter of simply scrutinising what actually was put.  It will involve a consideration of all of the evidence, how the matter stood at the end of all of the evidence and what the parties and the Tribunal should have recognised from that material was still in issue in the case.  I do not accept that every failure to put every particular aspect of a case amounts to a serious procedural failure.  The context may suggest that looked at overall it was perfectly fair, everybody knew where they were heading, what was at issue, what the case being put forward was and what the answer to it should be.”

“… Further, if a point has not been mentioned, or if little or no weight has been attached to it, the tribunal is entitled to and should have regard to the point according to their own assessment of it but, in forming that assessment, the … tribunal should … pay careful and proper attention to the course of the hearing and the way in which and the extent to which a point has been made or relied upon. …”

“(2) In the case of a decision given in writing the reasons shall also be given in writing.  In the case of a decision announced at a hearing the reasons may be given orally at the hearing or reserved to be given in writing later (which may, but need not, be as part of the written record of the decision).  Written reasons shall be signed by the Employment Judge.” 

“15. It will be apparent from what I have already said that I agree that the Judge’s reasoning did differ as between the oral reasons, at least as recorded by Ms Alistari, and the written Reasons.  But I do not accept that this is a ground for allowing the appeal.  The short point is that if, as I have held, the Judge’s conclusion was unquestionably right it should be upheld whatever the errors in either set of reasons.  But the point is one which I have seen raised in other appeals, and it may be useful if I make clear my view that a divergence between a tribunal’s oral and written reasons would never, without more, give rise to a valid ground of appeal.  I set out below what I consider to be the status of oral reasons in circumstances where written Reasons are subsequently requested and supplied. 

16. I accept that normally any written Reasons supplied pursuant to r 3(3) will closely correspond to the oral reasons given at the conclusion of the hearing.  The usual practice is that the oral reasons are recorded on tape and that if a request for written Reasons is made a transcript will be provided to the Judge and will constitute, in effect, the first draft of the written Reasons.  There will almost always, however, be some degree of editing.  Often that will involve no more than “topping and tailing” and/or correcting infelicities of language or expression.  But the editing process may, depending on the circumstances of the case and no doubt on the temperament of the Judge, be more substantial.  Even then, the essential reasoning would normally be retained.  But every now and then there will be cases where the process of revision is so extensive that, whether the Judge appreciates it or not, the reasoning expressed in support of the conclusion differs in substance from the oral reasoning: sometimes the difference may be patent, but sometimes the difference may only be apparent on a careful analysis.  There is no shame in this.  Giving oral reasons is in principle a healthy practice, which is economical of resources (including the invaluable resource of time) and helpful to the parties; but the Judge will necessary have less time to prepare what is said than if reasons are reserved, and it is unsurprising that the process of producing written Reasons will occasionally modify his or her detailed thinking. 

17. I do not believe that such a departure from the initially expressed reasoning involves any error of law.  The scheme of the Rules seems to me to be that where written Reasons are supplied they constitute the sole authoritative statement of the tribunal’s reasons and the oral reasons are superseded.  It would be unfortunate if the tribunal were irrevocably committed to its first thoughts as to the route by which the result is most appropriately reached; and I can see no reason in law why that should be so.  What ultimately matters is not to have an accurate reflection of the processes by which, as a matter of history, the tribunal reached its conclusion but that in the definitive reasons provided for by the Rules the parties and others (including this tribunal) should have the benefit of its most considered justification for the decision which it has reached. …”

“(9) Where a tribunal orders compensation under paragraph (7)(b), the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances … having regard to -

(a) the infringement to which the complaint relates, and

(b) any loss which is attributable to the infringement having regard, in the case of an infringement of the right conferred by regulation 5, to the pro rata principle except where it is inappropriate to do so.”

DECISION