Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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What does O'Brien mean for the judiciary?

06 February 2013

The Supreme Court has handed down O’Brien v Ministry of Justice, which is the end (or at any rate the beginning of the end) of the long running saga of fee-paid judges and their pensions.1

The Supreme Court concluded that Mr O’Brien, a Recorder, was entitled to a pension on terms equivilent to those applicable to a circuit judge.

This almost certainly means that all fee-paid judges are entitled to a pension equivilent to their salaried brethren.

The case has a number of interesting things to say about discrimination and justification, especially in relation to the extent to which ‘costs plus another factor’ or ‘costs alone’ can amount to justificaton.

Its most significant impact, however, is likely to be on the makeup of the judiciary.

Over the last fourty years, the number of fee-paid judges has increased significantly. The judgement records that in 1970 they were about 25% of the judiciary. Since the fee-paid judges sat part time, this meant that the overwhelming majority of judicial decisions were being made by full-time judges.

Now there are twice as many fee-paid judges as salaried among Circuit Judges / District Judges and their fee-paid equivilents. And fee-paid judges are very common among the tribunal judiciary, including the employment judiciary.

At least part of the reason for this is that fee-paid judges are cheaper. Primarily because they have not received judicial pensions. This is now likely to change.

More salaried judges

Salaried judges have a number of advantages over fee-paid judges. They tend to be more experienced and, since they are mostly sitting full-time, they’re easier to schedule (especially for long cases, which fee-paid judges often can’t do because they’re not available for long chunks of time).

Fee-paid judges also have advantages too. They’re a more flexible resource – when you need more judges you ask them to sit more days and vis versa. Institutionally, fee-paid positions are also useful as a training and selection mechanism. It gives people an opportunity to do a bit of judicial work and get some experience – and the opportunity for their judicial skills to be assessed before they’re appointed as salaried judges.

For all of these reasons, there will probably always be a mix of salaried and fee-paid judges. But, if fee-paid judges must receive a judicial pension, one of the key factors in the balance between them and salaried judges has shifted. It is is likely that the proportion of salaried judges will rise.

More judicial branching

One of the anomalous aspects of the tribunal judiciary is that the structure is very flat.

In the civil system, there are District Judges, Circuit Judges and High Court Judges. Broadly speaking, District Judges deal with simpler cases, Circuit Judges more complicated cases and High Court Judges most complicated cases. District Judges are paid the least, Circuit Judges more and High Court Judges most.

In the Employment Tribunal there are just Employment Judges.

In practice, as I understand it, there is an informal hierarchy, partly based on a distinction between fee-paid and salaried Judges. In general, fee-paid Judges are assigned the less complex work, while salaried judges do more of the more complicated work.

It seems to me that one likely result of O’Brien is that the employment judiciary will be bifurcated. Junior Employment Judges will be assigned the less complex work and paid a bit less (and probably most will be fee-paid). Senior Employment Judges will do more of the more complex work and paid a bit more (and probably most will be salaried).2

This will allow the MoJ to limit the increase in costs, without applying different remuniration rules to fee-paid judges compared with salaried judges.

I also think it makes sense in principle. Employment Judges do a wide range of different work. Some of it, in the context of the whole legal system is pretty simple. Some of it is extremely complex and difficult – stuff that in the civil system would plainly be suitable for a High Court Judge.

Yet, Employment Judges are paid much less that High Court Judges.3 And they don’t have the promotion prospects of a High Court Judge, many of whom go up to the Court of Appeal.

As well as being rather unfair, I suspect this causes recruitment problems.

There are a lot of good salaried Employment Judges. But, high-flying employment practitoners (senior silks and the like) are more likely to go to the High Court. This means that a lot of the best employment practitoners, who do go onto be judges, are never available to judge complex first-instance employment cases.

A more senior division of Employment Judges, who were better paid (and perhaps more likely to be promoted onto the High Court), might mitigate this.


Edited to add: Laurie Anstis points out that, in 2011, the Review Body on Senior Salaries recommended that salaried Employment Judges be moved up a grade, but fee-paid Employment Judges remain on the current grade.

At this point, I think that would be a brave decision. At least without introducing a more formal seperation between the work done by fee-paid and salaried Judges.

  1. Fee-paid judges are paid on the basis of a fee for each day of sitting. Contrast with salaried judges, who a paid a set salary. Generally, fee-paid judges are part-time, generally with active practices as solicitors and barristers. Generally, salaried judges are full-time. But there are a number of part-time salaried judges and some fee-paid judges sit frequently enough to be considered full-time.

  2. The MoJ will, however, come up with more appropriate titles than Junior / Senior.

  3. High Court Judges: £172,753; Employment Judges: £102,921, Judicial salaries 2012/13.

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