The Scottish Ministers v Johanna Johnston

Introduction

The Scottish Ministers appeal against the judgment of the Employment Tribunal on a preliminary issue, sent to the parties on 28 February 2023. For sake of convenience in this judgment, I will refer to the parties as they were described below: the Scottish Ministers as the Respondents; Ms Johnston as the Claimant.

The Claimant’s claim in the Tribunal proceedings

The Claimant’s claim is brought under regulation 8 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Part-Time Workers Regulations”). From September 2013 the Claimant was a Temporary Judge of the Court of Session. She contends: that as a Temporary Judge she was paid less than permanent judges of the Court of Session; that this was contrary to the requirement at regulation 5 of the Part-Time Workers Regulations that part-time workers should not be treated less favourably than “comparable full-time workers”; and, in particular, that this was contrary to the “pro-rata principle” at regulation 5(3) of the Part-Time Workers Regulations, and defined at regulation 1(2).

In outline, the circumstances in which the Claimant’s case arose are as follows. From 2003 until her retirement in 2022 the Claimant held judicial office. In May 2003 the Claimant became a part-time Sheriff. In September 2008 she was appointed to the office of Sheriff, which was a salaried position. With effect from 10 September 2013, the Claimant was appointed a Temporary Judge of the Court of Session (“a Temporary Judge”). That appointment was made by the Respondents in exercise of powers then contained in section 35(3) of and paragraph 5 of Schedule 4 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (“the 1990 Act”). So far as material and at the material time, section 35 of the 1990 Act was as follows.

In 2018 the Claimant was re-appointed. By that time, the provisions in the 1990 Act had been repealed and replaced. The relevant statutory provision at that time (and now) were at sections 20B and 20C of the Judiciary and Courts (Scotland) Act 2008 (“the 2008 Act”) which, in the circumstances of the Claimant’s case, required her re-appointment.

Following appointment as a Temporary Judge, the Claimant continued to work as a Sheriff combining that work with work as a Temporary Judge. The time spent by the Claimant sitting as a Temporary Judge varied from year to year: for example, in the 2013 calendar year she sat for 13 days, and in the 2015 calendar year she sat for 101 days. A table setting out the Respondents’ calculation of the Claimant’s sitting days is at paragraph 17 of the Tribunal’s judgment. Following her appointment as Temporary Judge, the Claimant continued to receive the salary she had been paid as Sheriff notwithstanding that part of her time was spent sitting as Temporary Judge.

The Claimant’s claim under the Part-Time Workers Regulations is that these arrangements meant that, as Temporary Judge, she was a part-time worker and was treated less favourably than permanent judges of the Court of Session. The salary of a permanent judge of the Court of Session is higher than the salary paid to a Sheriff. The Claimant contends that for each day’s sitting as a Temporary Judge she should have been paid an additional amount over and above her Sheriff’s salary so that her total remuneration for the day was equivalent to the per diem remuneration paid to a permanent judge of the Court of Session (i.e., remuneration equivalent for each day sitting to 1/210^th of the salary of a judge of the Court of Session). The Claimant contends that the failure to make such payment is a breach of regulation 5 and of the pro-rata principle. She claims compensation.

The Tribunal’s judgment

The preliminary issue for the Tribunal was whether the Claimant was a part-time worker as defined in the Part-Time Workers Regulations. Regulation 2 defines “full-time worker”, “part-time worker”, and “comparable full-time worker” as follows.

The Tribunal concluded the Claimant became a part-time worker at the time of her appointment as a Temporary Judge and from that time held two, concurrent, part-time posts. The Tribunal’s reasons, set out from paragraph 53 of its judgment, may be summarised as follows. The Tribunal noted that the Claimant’s appointment as Sheriff and Temporary Judge were separate appointments. The Tribunal considered the detail of the Claimant’s day-to-day work as Sheriff and as Temporary Judge concluding that her work in each capacity was separate from the other. The Tribunal explained this conclusion as follows.

The Tribunal drew two inferences from these matters. The first was that on appointment as a Temporary Judge the Claimant’s full-time appointment as Sheriff had been varied.

The second inference was that from the same time, the Claimant held two, concurrent, part-time positions. One as Sheriff the other as Temporary Judge.

The Tribunal’s reasoning is detailed. In reaching the conclusions I have set out above the Tribunal considered and rejected submissions advanced on behalf of the Respondents, all to the effect that the Claimant’s appointment as Temporary Judge did not mean that she had ceased to hold a single, full-time appointment. These submissions relied on: (a) the effect of the statutory provisions under which the Claimant was appointed as Temporary Judge; (b) the continuation of, and absence of formal variation to, the Claimant’s terms of appointment as Sheriff in 2013 when she was appointed a Temporary Judge; and (c) the absence of evidence of any custom and practice that on appointment as Temporary Judge, a full-time appointment as Sheriff became a part-time appointment. I will not in this judgment rehearse the parts of the Tribunal’s reasoning dealing with these matters save to the extent necessary to address the Respondent’s submissions in this appeal.

The grounds of appeal

In this appeal as in any other, the overarching issue is whether the Tribunal’s conclusion that the Claimant was a part-time worker rested on any error of law.

The Respondents pursue four grounds of appeal. Ground of Appeal 1 rests on the statutory provisions applicable to the Claimant’s appointment as temporary judge – i.e. those in the 1990 Act as at the time of her appointment in September 2013, and those in the 2008 Act which were in force when the Claimant was re-appointed in 2018. The Respondents contend the Tribunal misconstrued the meaning and effect of these provisions. Grounds of Appeal 2 and 3 are linked to the first ground. Each challenges the Tribunal’s conclusion that from 2013, the terms of the Claimant’s appointment as Sheriff were varied by conduct. The Respondents’ submission is that the significance of what happened in practice – what the Tribunal referred to as “the reality” of the situation – is very different if considered in the context of the statutory provisions (in the 1990 Act and in the 2008 Act), and in the context of the documentary evidence relevant to the Claimant’s appointment as Sheriff. The thrust of these submissions is that the “reality” identified by the Tribunal relied on matters that were not and could not produce the result that the Claimant’s full-time engagement as sheriff had become two part-time engagements, one as Sheriff the other as Temporary Judge. Ground of Appeal 4 is that the Tribunal misapplied the definition of part-time worker at regulation 2(2) of the Part-Time Workers Regulations to the circumstances of this case by taking too narrow an approach to relevant custom and practice, disregarding evidence that Sheriffs appointed as Temporary Judges continued to be regarded as full-time Sheriffs. The relevant part of the Tribunal’s judgement is paragraph 92, which is set out below.

The Claimant’s response, in very short summary, is that the Tribunal’s understanding and application of the relevant provisions in the 1990 Act and the 2008 Act was correct, and the remaining grounds of appeal disclose no error of law and amount only to attempts to challenge findings of fact that were properly available to the Tribunal.

Decision

The submissions for both parties have included submissions made by reference to the judgment of the Employment Appeal Tribunal in Ministry of Justice v Dodds [2023] ICR 715. In that case, this Tribunal considered claims brought by English judges under the Part-Time Workers Regulations. There is superficial similarity between those claims and the claims before me. The Claimants in Dodds were holders of full-time judicial office who, on occasion sat temporarily in different jurisdictions: for example, some were Circuit Judges who, pursuant to section 9 of the Senior Courts Act 1981, occasionally sat as Deputy Judges of the High Court. The Circuit Judge claimants in Dodds contended that when sitting as Deputy Judges of the High Court they were part-time workers and for that work they should, pro-rata, be paid the same as High Court Judges appointed under section 10 of the Senior Courts Act 1981.

However, notwithstanding some similar circumstances, this Tribunal’s conclusions in Dodds rested on consideration of the provisions in the Senior Courts Act 1981 and the evidence available in that case relating to the claimants’ appointments. The conclusions reached in Dodds provide no template for the present case. This case requires consideration of different statutory provisions, those in the 1980 Act and the 2008 Act, and of the conclusions of the Employment Tribunal on the evidence available to it. All this must be considered on its own terms. In the premises, I have not considered it necessary to spend time in this judgment analysing the conclusions reached in Dodds. The issues in this case all arise from the Tribunal’s conclusion that following appointment as Temporary Judge in 2013 the Claimant was party to two discrete employment relationships, each a part-time arrangement. The focus of attention in this litigation must be on whether that conclusion was correct in law.

Ground of Appeal 1. Misapplication of the statutory provisions relevant to the Claimant’s appointment as Temporary Judge.

The Respondent’s submission to the Tribunal was that the conclusion that the Claimant by reason of her appointment as Temporary Judge became a part-time worker was inconsistent with the statutory provisions concerning the appointment of temporary judges. At the Tribunal hearing, submissions on this point were made by reference to the provisions in section 20B of the 2008 Act and, in particular section 20B(7). Section 20B of the 2008 Act provides as follows.

As already mentioned, section 20B of the 2008 Act came into effect on 1 April 2015, after the Claimant’s appointment as Temporary Judge in September 2013. At the time the Claimant was appointed, in 2013, the provisions material to that appointment were in section 35A and Schedule 4 to the 1990 Act. In summary those provisions were as follows. By section 35(3) of the 1990 Act, appointment of temporary judges was governed by paragraphs 5 to 11 of Schedule 4 to the 1990 Act (set out above, at paragraph 3). By paragraph 5, any person meeting the requirements for eligibility at paragraphs 1 of the Schedule could be appointed. Appointment was for a period of 5 years subject to reappointment. Paragraphs 6 to 8 provided as follows.

The Tribunal’s conclusion on the effect of section 20B(7) of the 2008 Act is at paragraphs 77 to 80 and 112 to 114 of its judgment.

The Tribunal’s approach was that section 20B(7) means only that appointment as Temporary Judge does not mean the individual ceases to hold the office of Sheriff. As interpreted by the Tribunal, section 20B(7) refers only to the bare holding of the office of Sheriff, and not to the terms attaching to that office. So far as concerned the Claimant, the Tribunal’s conclusion was that section 20B(7)(a) did not prescribe the consequence of appointment as Temporary Judge on the terms on which she held the office of sheriff. This permitted the Tribunal’s further conclusion that, on appointment as Temporary Judge, the Claimant’s terms were varied by conduct such that she held two discrete part-time appointments one as Sheriff, the other as Temporary Judge.

Identification of the terms on which the Claimant held office following her appointment as a Temporary Judge is critical to whether the Claimant was a part-time worker. This follows from the reasoning of the Supreme Court in Ministry of Justice v O’Brien [2013] ICR 499 which concerned the application to judicial office holders of the definition of worker in the Part-Time Workers Regulations. O’Brien was a claim under the Part-Time Worker Regulations by a person appointed to the office of Recorder pursuant to section 21 of the Courts Act 1971. The office of Recorder is a part-time, fee-paid office. The claim was that Recorders were less favourably treated than (salaried, full-time) Circuit Judges because their work was not treated as pensionable. The Court of Appeal had dismissed the claim on the basis that Recorders were not workers as defined at regulation 1(2) of the Part-Time Workers Regulations – i.e. not persons who worked under a contract of employment or under a contract requiring provision of personal service. The Supreme Court referred the following questions to the Court of Justice of the European Union, on the meaning of provisions in the Part-Time Workers Directive (Counsel Directive 97/81/EC):

In the present litigation, the Respondents accept that, so far as concerns the existence of an employment relationship, the same reasoning applies to the Claimant. It follows that the question for the purpose of the preliminary issue in these proceedings was whether the Claimant was party to an employment relationship under which she was a part-time worker. By regulation 2 of the Part-Time Workers Regulations a part-time worker is defined as a person “not identifiable as a full-time worker”. If, following her appointment as Temporary Judge, the Claimant remained a full-time worker she can have no viable claim under regulation 5 of the Part-Time Workers Regulations.

I consider the Tribunal’s conclusion on the meaning and effect of section 20B(7)(a) of the 2008 Act was wrong. The reference to a person’s “appointment … as a … sheriff” is more naturally understood as embracing all aspects of that appointment; not simply the bare holding of the office of Sheriff, but also the terms attaching to that office as it was held by that person.

This conclusion fits with the other provisions in section 20B of the 2008 Act. Section 20B(1) refers to appointment to “act as a judge of the Court of Session” (emphasis added) rather than appointment as a judge of that court which is the language used in section 20A of the 2008 Act when referring to full-time judges of the Court of Session. The language used in section 20B(1) both supports a conclusion that a sheriff appointed as a Temporary Judge retains her existing office in full, doing no more than acting as a judge of the Court of Session from time to time, and points against a conclusion that appointment as a Temporary Judge gives rise to any new, discrete, employment relationship.

The language of section 20B(1) is reflected in the terms of the Claimant’s appointment. The Claimant’s commission as Temporary Judge was provided under cover of a letter dated 17 September 2013 which was, I assume, in a standard form. The commission referred to the Claimant’s appointment “… to act as a Temporary Judge of the Court of Session on such occasions as the Lord President made from time to time direct …”. There is no doubting the importance of the appointment to the position of Temporary Judge, but it is an appointment to a position that is occasional, not one that derogates from appointment as Sheriff.

The other relevant provisions in section 20B are subsections (5) and (6) (set out above, at paragraph 17). Taken together these provide that Temporary Judges (a) are to be treated as judges of Court of Session having the powers and jurisdiction of the office of judge of that court while so acting; but (b) are not to be treated as judges of the Court of Session for the purposes of provisions relating to appointment of a judge of the Court of Session or “the renumeration, allowances or pensions of such a judge”. The clear and only inference from each provision is that the person appointed remains a sheriff, albeit entitled by appointment as a Temporary Judge to act in a different capacity.

Thus, the only conclusion on the meaning and effect of section 20B(7)(a) of the 2008 Act that is consistent with these provisions is not the one reached by the Tribunal, but rather the conclusion that when a Sheriff is appointed to be a Temporary Judge, the terms attaching to her appointment to the office of Sheriff are unaffected. It must follow the Tribunal’s conclusions at paragraphs 77 – 80, and 112 – 114 (all set out above, at paragraph 19) were in error. This error as to the meaning and effect of section 20B of the 2008 Act is critical so far as concerns the remainder of the Tribunal’s reasoning.

The Claimant advances two submissions to the contrary. The first is that the Tribunal’s conclusion on the meaning of section 20B(7) of the 2008 Act is correct because any reasoning applied to sub-paragraph (a) must also apply to sub-paragraph (b), the provision that applies to practitioners who are appointed to be Temporary Judges. The Claimant’s submission is that if section 20B(7)(a) is construed as “preventing” any change to the Claimant’s terms and conditions of appointment the same reasoning would necessarily apply to sub-paragraph (b). I do not consider this submission properly captures the effect of section 20B(7) of the 2008 Act either in its application in sub-paragraph (a) or sub-paragraph (b). The subsection “prevents” change only in the sense that it makes clear that appointment as a Temporary Judge is not the occasion of any such change. Thus, the reasoning I have set out above applies equally to sub-paragraph (a) cases and to those within sub-paragraph (b). The Claimant’s second submission relies on section 20 of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”). This provides that an appointment as a Sheriff will end “… if the individual is appointed as another such judicial officer”. The Claimant submits that if section 20 of the 2014 Act is read together with the definition of “judicial office holder” at section 43 of the 2008 Act, appointment as a Temporary Judge would be an appointment such as is referred to in section 20 of the 2014 Act – that would bring any appointment to the office of Sheriff to an end. It follows (so this submission goes) that the purpose of section 20B(7)(a) of the 2008 Act is only to prevent what would otherwise be the effect of section 20 of the 2014 Act. I do not agree with this analysis. The definition of “judicial office holder” at section 43 of the 2008 Act applies only for the purposes of Part 2 of that Act. It has no application to the 2014 Act. Further, section 20 of the 2014 Act only concerns the effect on one shrieval appointment in the event of appointment to a different shrieval office; it has nothing to say about the effect of appointment as a Temporary Judge.

Returning to the Tribunal’s judgment in this case, the premise of the Tribunal’s reasoning was that the Claimant’s appointment as Temporary Judge was akin to appointment of to a new job. This led the Tribunal to undertake a detailed assessment of the Claimant’s working patterns and duties following her appointment as Temporary Judge, considering how her hearings were listed, by whom cases were allocated, and where cases were heard, with a view to constructing a new and discrete employment relationship as a Temporary Judge on the assumption from September 2013 this relationship sat alongside the arrangements under which the Claimant carried out the duties of the office of Sheriff.

Section 20B of the 2008 Act, properly understood, renders that exercise both inappropriate and unnecessary. I consider that the plain meaning and consequence of the statutory provisions is that the Claimant’s appointment as Temporary Judge did not affect either her employment as Sheriff or the terms on which that office was held. To put the point in the language of the Supreme Court in O’Brien, the Claimant’s appointment as Temporary Judge did not give rise to any discrete and new employment relationship; rather, when the Claimant worked as a Temporary Judge, that work was an aspect of the work she was able to undertake by virtue of her appointment a Sheriff.

Drawing these matters together the Tribunal’s conclusions at paragraphs 80 and 113 of its judgment were wrong. Ground of Appeal 1, therefore, succeeds.

Grounds of Appeal 2 and 3. Variation of the Claimant’s terms of appointment by conduct.

The starting point for considering whether terms of an appointment have been varied by conduct should be consideration of the terms on which the appointment was held prior to the variation that is claimed. Whether the matters relied on as giving rise to the variation have that effect must be considered in the context of the terms of the original appointment. In this case the direct evidence as to the terms on which the Claimant held office as Sheriff was limited. There was no formal statement of the terms on which she held that office. At paragraphs 2 and 4 of its judgment, the Tribunal recorded the following which was part of the agreed statement of facts.

The major part of the Tribunal’s reasoning in support of the conclusion that there were two concurrent part-time appointments comprised detailed consideration of the Claimant’s sitting arrangements from 2013. The Tribunal distinguished the Claimant’s work as a Sheriff from her work as a Temporary Judge, concluding that once she had been appointed as a Temporary Judge the employment relationship that had until that time existed was supplanted by two concurrent part-time employment relationships, one covering her work as Sheriff the other her work as Temporary Judge. The Tribunal noted that the Claimant’s work as Sheriff was distinct from her work as a Temporary Judge (paragraph 64 of the judgment); that she sat in different courts (paragraph 72); was subject to different “judicial line managers” (paragraph 68); and undertook different training (paragraph 71). The Tribunal’s conclusion was that it was a necessary inference from these matters that two separate part-time employment relationships had come into being. This, the Tribunal concluded, was “the reality” of the position: see the Tribunal’s judgment at paragraphs at paragraphs 100 and 110 (set out above, at paragraph 10).

There are two reasons why this conclusion cannot stand. The first rests on the conclusion already stated on the meaning and effect of the provisions in the 2008 Act applicable to the Claimant’s appointment as Temporary Judge. Those statutory provisions require the conclusion that the Claimant’s appointment as Sheriff was not affected by her appointment as Temporary Judge. The inference the Tribunal drew: that the arrangements made to enable the claimant to sit as a Temporary Judge were evidence that a new employment relationship had come into existence, one that cut down the employment relationship that had previously existed, was inconsistent with those statutory provisions. Since the provisions in the 2008 Act mean that appointment as a Temporary Judge has no effect on appointment as Sheriff, neither the practical arrangements necessary to enable the Claimant to sit as a Temporary Judge, nor the matters that were the necessary consequence of those arrangements are capable as being relied on as evidence of a variation of the Claimant’s terms of appointment as Sheriff. In fact, any such arrangements and all such consequences are consistent with the ordinary and expected operation of section 20B of the 2008 Act. This being so, the conclusion reached by the Tribunal rested on an inference that could not properly be drawn.

But in any event, and even if the statutory provisions were to be disregarded, the Tribunal was wrong in law to draw the inference it did that two part-time employment relationships had come into existence. Had the situation before the Tribunal depended on determining the modification of contractual provisions, the question would have been whether the facts gave rise to a necessary inference that a single contract had been replaced by two part-time contracts. Even though the present circumstances concern the terms on which an office is held rather than the terms of a contract, the approach and standard required should be no different. It was for the Tribunal to be satisfied that the necessary inference to draw from the practical arrangements made to allow the Claimant to sit as a Temporary Judge, was that two employment relationships had come into existence.

Applying that standard, the evidence in this case was not such as to permit that inference to be drawn. Some matters did change following the Claimant’s appointment as Temporary Judge. When sitting as a Temporary Judge she had a different place of work, she conducted the judicial work of a of a different jurisdiction. But other important matters did not change. There was no change in the identities of parties to the employment relationship, and there was no change in the arrangements for remuneration. Some weight must also attach to the documents referred to by the Tribunal in its “Additional Findings of Fact”: set out above at paragraph 31. Those documents support the conclusion that acting as a Temporary Judge can be one of the functions of those appointed to the office of Sheriff. In these circumstances it would have been open to the Tribunal to conclude that the terms on which the Claimant held the office of Sheriff had changed to the extent necessary to permit her, from time to time, to sit as a Temporary Judge of the Court of Session. However, the matters identified by the Tribunal (for example at paragraph 81 of the judgment, set out above at paragraph 9) are not, capable of supporting a necessary inference that a new, second employment relationship had come into existence. Those changes were, at the least, equally consistent with the conclusion that the existing, single, employment relationship between the same parties remained in force, albeit on varied terms. There was no necessary conclusion that a second, concurrent, employment relationship had been created. The Tribunal’s reasoning at paragraphs 84 and 85 of the judgment (above at paragraph 8) recognised that there was no necessary inference that a second employment relationship had come into existence. In the premises, the Tribunal’s conclusion that a separate, second employment relationship had arisen was wrong in law. For these reasons Grounds of Appeal 2 and 3 also succeed.

Ground of Appeal 4. Misapplication of the definition of part-time worker at regulation 2(2) of the Part-Time Workers Regulations.

The words at the end of regulation 2(2) require that the decision on whether the worker is a part-time worker to be made taking account of the employer’s custom and practice. A worker will not be a part-time worker if by reason of custom and practice he is identified by that employer as a full-time worker. This part of the definition recognises the difficulty inherent in any definition of part-time worker framed by reference to maximum or minimum hours worked, and serves to meet the purpose the Regulations pursue, namely that an employer should not treat the part-time workers he employs less favourably than full-time workers simply by reason of the fact they work part-time. Thus, who is part-time and who is full-time must have regard to the practices the employer adopts.

In this case the Tribunal referred to the words at the end of regulation 2(2) at paragraph 95 of its judgment.

Thus, the Tribunal considered (a) that the Claimant worked part-time as a Sheriff because she worked fewer days as a Sheriff than she would have done but for her appointment as Temporary Judge; and (b) that she worked part-time as a Temporary Judge because she was not expected to work the same number of days in that capacity as persons appointed judges of the Court of Session. The Respondents’ submission is that this was a misapplication of the words at the end of regulation 2(2): it rests on the Tribunal’s incorrect conclusion that the Claimant was party to two concurrent employment relationships; it fails to consider the employer’s custom and practice when a Sheriff appointed as a Temporary Judge to act as a judge of the Court of Session which drew no distinction between days when that judge sat as a Sheriff and days she sat as a Temporary Judge such that all sitting days were considered part and parcel of a single appointment. Instead, it is submitted, the relevant custom and practice was that Sheriffs who also acted as Temporary Judges were treated in the same way as Sheriffs who did not so act. Each was regarded as having a single, full-time appointment.

On the facts of this case, this submission adds little to the submissions already considered on the effect of the provisions in the 2008 Act, and on whether it was open to the Tribunal to infer the existence of two concurrent employment relationships. I have already concluded that the Tribunal misconstrued the effect of the statutory provisions, and erred in law when it concluded the necessary inference following the Claimant’s appointment as a Temporary Judge in 2013, was that two distinct part-time employment relationships existed. It necessarily follows from these conclusions that the Tribunal did misapply regulation 2(2) of the Part-Time Workers Regulations in the circumstances of this case. The premise for the Tribunal’s application of regulation 2(2) was the existence of two part-time employment relationships. That was a false premise. This ground of appeal also succeeds.

Disposal

For the reasons above, the Respondents’ appeal succeeds on all grounds. Given the conclusions I have reached in this appeal, the only conclusion available in the proceedings before the Tribunal is that the Claimant was not a part-time worker for the purposes of the Part-Time Workers Regulations. The decision of the Tribunal will be set aside. A declaration will be made that the Claimant was not a part-time worker for the purposes of the Regulations. The Claimant’s claim under the Part-Time Workers Regulations must therefore be dismissed.