Judges and Flexible Working: Is there a Cost?

The Lord Chancellor, Kenneth Clarke, has announced a strategy to appoint more women judges (‘Solicitors Journal’ 29 November 2011).

Everyone supports the principle of equal opportunity. More controversially, I believe that concessions should be made to encourage more women to aspire to the higher reaches of the judiciary, the High Court and the Court of Appeal. One such concession is flexible (part-time) working.

This sounds fine in principle, but there could be a cost.

There are many part-time, or ‘fee-paid’, employment judges. Litigants tend to prefer full-time judges, who inevitably gain experience more quickly than part-time judges. The confidence of litigants in the judiciary is important, but this is also an argument for more women judges.

Does flexible working mean that part-time judges will not sit on longer trials, say five days or more? If so, again they will miss out on experience and leave the burden of more complex cases to their full-time colleagues. Would this be fair, consistent with equal pay for equal work?

I was in a five-day High Court trial, in which the judge took Monday afternoon ‘off’ to deliver a judgement in another case. The litigants had to pay for that half-day, because brief fees (and, doubtless other costs) were based upon a full day’s work. How would litigants have felt if the judge worked flexibly to avoid working afternoons?

A part-time judge dealing with one of my employment cases forgot to put an adjourned hearing in her diary and so failed to turn up for a hearing. The Regional Judge had to apologise to the litigants, who incurred extra costs and inconvenience as a result. I do not suggest that this is typical, but there can be administrative problems attached to flexible working.

Concession should be made, but perhaps the unfortunate reality is that it is difficult to do any top job part-time?

Geoffrey Bignell


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