Discrimination: Less Favourable Treatment and Assessing Compensation

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary

Was an employment tribunal entitled to find that part-time judges of the Residential Property Tribunal had been less favourably treated than their full-time comparators in respect of payment for judgment writing? And was the employment tribunal entitled to take a rough and ready approach to the quantification of the extent of the less favourable treatment?

Yes, on both counts, held the EAT in MOJ v Burton & Engel.

The Claimants (who had been appointed as Lead Claimants) were both former judges of the Residential Property Tribunal who alleged that they had been less favourably treated than their full-time comparators "full-time salaried judges of the First-Tier Tribunal (Tax Chamber)" in respect of payment for judgment writing in Leasehold Valuation Tribunal cases.

The employment tribunal upheld their claims and went on to determine that the Claimants were, subject to mitigation of loss arguments, entitled to be paid two-thirds of a daily sitting fee for each day they spent sitting on a substantive case. The MOJ appealed on both liability and quantum.

In dismissing the appeal President Langstaff held that the fact that Tax Judges were entitled to be paid for judgment writing as a right, whereas the Claimants were subject to a discretionary system, was sufficient to establish less favourable treatment.

As to the employment tribunal's approach to quantification, President Langstaff held that the figures reached as a result of a broad brush assessment could not be said to be manifestly too low.

Mr Engel succeeded in various aspects of a cross-appeal and on that basis the case was remitted to the employment tribunal.