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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Unhappy Employment Judges

17 February 2015

The Judicial Attitudes Survey is fascinating for anyone with an interest in the legal world generally. But there’s some particularly interesting (if worrying) stuff for those of us dealing with employment cases.

There are 166 salaried Employment Judges in England and Wales; 158 answered the survey – so it’s very close to a true census. Unfortunately, it didn’t cover fee paid judges. I hope next year they’ll expand the scope so we can see the full picture.

Like the other branches of the judiciary, Employment Judges don’t feel they’re paid adequately. Only 14% agreed their pay and pension adequately reflected their work. 64% said they were not paid a reasonable salary. Employment Judges were also more likely than other judges (with the exception of Justices of Appeal) to discourage potential candidates because of reductions in income and likely further reductions in judicial pensions.1

87% of Employment Judges said that opportunities for career progression were non-existent or poor. 88% said their opportunities to sit in other jurisdictions were non-existent or poor.

32% of Employment Judges don’t feel they’re encouraged to use their talents fully – tied with Circuit Judges for second highest figure among the judiciary (District Judges, at 39%, feel worse off).

50% are considering leaving the judiciary early and 24% were undecided – meaning only 26% were not considering early retirement. Both the First Tier Tribunal and Upper Tribunal have higher figures. But, more Employment Judges are considering early retirement than any judges within the civil system.

69% of Employment Judges assessed the morale of staff as poor.

Interesting though only 28% think that recent change has brought the judges to breaking point – the lowest figure among the judicial posts! Although when the fact only 28% of your judges think they’re at breaking point looks like rather good news, you know you’re going over rough ground.

And 78% of Employment Judges thought their case workload was manageable – the highest percentage in the judiciary. So the fees black cloud has some sort of silver lining – if you squint very hard.

I think there are two things going on here. The first is simply that Employment Judges, in common the rest of the justice system, are feeling the strain of the blunt cuts by MoJ and the knock on impacts of cuts to legal help etc. It’s not surprising that this is making Employment Judges unhappy – it’s making everyone in the justice system unhappy.

But I think it’s more than that. I think there is a structural problem with where the Employment Judges are in the judicial hierarchy and that this is part of the discontent in the survey.

Employment Judges are essentially on the bottom rung of the Judiciary. They’re part of ‘Group 7’ on the Judicial Salaries Schedule together with Cost Judges, District Judges and the First Tier Tribunal Judges.

This doesn’t mean they live lives of impecunious want – Group 7 gets £103,950 a year, together with what is still a fairly generous pension scheme. But they are unquestionably at the junior end of the judiciary.

At the same time, promotion out of the Employment Judiciary is rare. I can think of one Employment Judge who has gone on to be Circuit Judge. But generally, once you’re appointed to the Employment Tribunal, you’re an Employment Judge for the rest of your career.

And yet, Employment Judges cover a range of work that undoubtedly covers stuff that, in the civil system, would be dealt with by a High Court Judge. Large equal pay cases, City discrimination claims, NHS whistle-blowing, all of these, and others, are high value, legally complex and factually difficult cases that would undoubtedly be assigned to the High Court.

This creates a two major problems. First, the Employment Judges dealing with those cases, I suspect, not unnaturally feel resentful that they’re doing difficult, high-level work, for which, in a different jurisdiction they’d be paid a lot more (and hold a more prestigious post). And they feel frustrated that they can’t progress in a judicial career – despite that high-level experience.

Second, I suspect that there are recruitment issues and deployment issues within the Employment Judiciary. Recruiting people to deal with the most difficult cases is always difficult. You need excellent lawyers who are also good judges and who have the necessary experience.

But when top employment barristers become judges they don’t generally become Employment Judges. They become High Court Judges – with their eye on possible promotion to the Court of Appeal. It would be odd if they didn’t. Why wouldn’t you aim for the more prestigious, better paid job – that comes with a knighthood if you like that kind of thing?

This is not to say that there aren’t excellent judges in Employment Tribunals. There are many. But a lot of excellent employment lawyers – exactly the people you’d want to recruit to deal with the hardest cases – never seriously consider becoming a salaried Employment Judge (or even a fee paid one).

Having identified these issues I have to admit I’m not sure how to solve them. I think it would help if the judiciary more generally continued to shed the snobbishness that tried to draw a distinction between tribunal and court work. A lot of tribunal work is quite low level, simple stuff. But so is a lot of stuff in the courts. And, the most difficult tribunal work – in any of the tribunals – is as difficult and complex as anything in the High Court. That would help to allow Employment Judges more of a career path.

I’ve also toyed with the idea of a more stratified employment judiciary. There’s no particular reason that you couldn’t have junior and senior Employment Judges – with the senior judges doing the more difficult work and being better paid. Again, that would hopefully attract a wider range of candidates and might also help Employment Judges with further ambitions take the next step.

You could also try to attack the problem from the other side, by having High Court Judges sitting as tribunal judges from time to time on the biggest cases. Something that is quite common in other tribunals.

I think the problem with both of these suggestions is that they risk moving us ever further from the idealistic beginning of employment tribunals as a place that ordinary people could present their industrial disputes and have them resolved in a fairly informal manner. Somehow we need to find a balance.

I worry though, that the Judicial Attitude Survey suggests that the pressures on the Employment Tribunal might be building to a head. The reduction in work caused by fees may have given something of a breathing space. But, if the Employment Judiciary is as unhappy as it appears to be, I think that’s a problem that needs looking at.

  1. I think this is particularly notable because the reduction in income for people becoming High Court Judges and Justice of Appeal is likely to be much greater than people becoming Employment Judges. Employment Judges are paid significantly less than the High Court – but High Court Judges tend to come from lucrative private practices.

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