Mr E Ker v The Chief Constable of West Yorkshire Police: 1806739/2020
EMPLOYMENT TRIBUNALS
Case No 1806739/2020
Between
Mr E KerClaimantThe Chief Constable of West Yorkshire PoliceRespondent
Before
Employment Judge EeleyMr D Basu QC for respondentDate 30 June 2021
JUDGMENT
[1]The respondent’s application to strike out the claimant’s claim as an abuse of process or on the grounds that it has no reasonable prospects of success is refused. The claim is not struck out.[2]The Tribunal has jurisdiction to hear the claimant’s claim as it was presented to the Tribunal within the statutory time limit at section 123 of the Equality Act 2010.[3]The Secretary of State for the Home Office is added as a second respondent to these proceedings. The claimant shall file and serve an amended claim on both respondents setting out the basis of the claim against the second respondent within 28 days of the date this judgment is hearing upon expiry of the time limit for presentation of a response to the claim by the second respondent.
REASONS
[1]The claimant is a serving police officer and brings claims of disability discrimination in connection with his exclusion from entitlement to ill health retirement benefits under the police pension scheme. The case was listed for a preliminary hearing to determine two issues:(a) Whether the claim should be struck out as an abuse of process.(b) Whether the claim has been presented outside the section 123(1)(a) time limit and, if so, whether the Tribunal should determine that it would be just and equitable to extend time and hear the case.[2]In order to determine these issues, I was referred to the contents of an agreed bundle of documents including the written witness statements of the claimant and Edward Simpson and Jan Swales on behalf of the respondent. I had the benefit of skeleton arguments on behalf of both parties which were supplemented by counsels’ oral argument. Strike out for abuse of process/ no reasonable prospects of success. The factual background to the claim[3]The claimant joined the respondent’s police force as a police constable on 12th December 2016 at the age of 24. The claim relates to the decision to exclude the claimant from receiving ill health retirement benefits (“IHR benefits”) under the Police Pension Scheme 2015 (“PPS 2015”). During the recruitment process the claimant disclosed to the respondent that he had injured his right knee playing rugby 8 years prior to his application and that he had undergone reconstructive knee surgery as a result. The respondent referred the claimant to the force’s Selected Medical Practitioner (“SMP”) Dr Adejoro under regulation 36 of the Police Pensions Regulations 2015 (“PPR 2015”).[4]The SMP provided a report dated 1st December 2016 where he confirmed that:(a) The claimant had suffered a rupture of the cruciate ligament of his right knee in 2008. He underwent a repair of the cruciate ligament in August 2008 and thereafter made a full recovery.(b) He had consulted a medical article which said that, on average 50% of persons who suffered such injuries developed osteoarthritis with associated pain and functional impairment.(c) On the balance of probabilities, the claimant was likely to have a low to medium risk of developing osteoarthritis between 15 to 20 years post-injury, which could impact on his ability to perform the ordinary duties of a police officer.[5]The SMP completed the pension scheme Form B where he stated:(a) The claimant was likely to become permanently medically unfit for performing the ordinary duties of a member of the force;(b) He was likely to become unfit as a result of osteoarthritis of the right knee following a right anterior cruciate ligament rupture;(c) The likelihood of this inability continuing until the day on which the claimant reached normal pension age or died was low to medium;(d) This inability to perform the ordinary duties of a member of the force was likely to occur in 11-20 years.[6]The resourcing manager Mr Wilks received the report and consulted the actuarial tables to determine whether the claimant was to be included or excluded from the ill-health benefits. They showed that a person aged 20- 24 whose duration to ill-health retirement was 11-20 years had to be excluded from them. Thus, on 9th December 2016, Mr Wilks determined that the claimant was ineligible for payment of ill-health benefits and completed the PPS Form C.[7]On 9th December 2016 Ms Harrison sent an email to the claimant stating:(a) He had failed to meet the longer-term health requirement to enjoy the full range of benefits under the PPS 2015 and so had the opportunity to pay a reduced pension contribution;(b) He should return the attached Form E if he wished to be accepted into the pension scheme;(c) The attached documents mentioned an appeal procedure;(d) For an appeal to proceed, the claimant had to provide evidence in the form of a report from a medical practitioner who had examined him and disagreed with the medical opinion of the SMP.[8]The following documents were attached to the email:(a) The police pension scheme Form B-the report of the SMP;(b) The police pension scheme Form C-the determination of Mr Wilks;(c) The police pension scheme Form D-the notification of limitation of benefits under the Police Pension Scheme 2015;(d) The police pension scheme Form E-a declaration of understanding;(e) A question and answer sheet.[9]The Form D told the claimant:(a) He had a right of appeal against the determination;(b) Once the claimant was admitted to the PPS with a restriction on access to ill health benefits, the decision was final subject to appeal against the medical retirement within the time limits allowed;(c) He should consider using the saving from the reduced pension contributions to help make provision for the future in the event he became permanently medically unfit and had to leave the force;(d) If he was unsure of the best options, he should seek independent financial advice and consider the possibility of insurance.[10]The Form E contained a declaration that stated:(a) The decision to exclude him from ill-health benefits as a member of the PPS was final and subject only to an appeal which had to be made within 28 days on Form F;(b) If he became permanently medically unfit and the force was unable to retain him, he would be liable for medical retirement without an ill health pension;(c) He may qualify for an injury award in certain circumstances but not if due to a pre-existing condition rather than an injury on duty;(d) He did not want to appeal against their exclusion from ill-health benefits under the PPS.[11]The Form F was an appeal form on which the claimant was asked to provide the name and address of his medical practitioner, the specialists who had treated him for his condition and that he would be entitled to await the results of the appeal before deciding whether to continue with his application to join the police.[12]The question and answer sheet told the claimant:(a) The medical assessment indicated that the cost of providing scheme benefits to him was expected to be more than 50% greater than the comparable average officer in the same group;(b) He would not be eligible for early payment of a deferred pension because of medical unfitness or payment of an ill health pension if medically retired so that his scheme contributions would be subject to a 2.5% reduction;(c) He would be eligible for an injury award, comprising a lump-sum gratuity and pension, if he suffered permanent medical unfitness that was unrelated to his pre-existing condition through an injury on duty;(d) If he was dissatisfied with the decision to exclude him from ill-health benefits he had the right of appeal (which it explained);(e) Once he was admitted to the PPS 2015 with a restriction on access to ill health benefits, the decision was final subject to appeal;(f) If he decided not to join the PPS, he could apply to join after three years and be subject to a fresh assessment.[13]On 18th December 2016, the claimant signed the declaration on Form E and returned it to the respondent. The pensions framework[14]The PPR 2015 were made pursuant to the Public Service Pensions Act 2013 s1(2)(g), concerning schemes for the payment of pensions and other benefits. They establish a scheme for the payment of pensions and benefits to members of a police force: PPR reg 3.[15]By PPR regs 36(1), (3), the scheme manager (in this case the respondent Chief Constable – see regs 2, 9(4) and reg 7) is permitted to require a person to submit to examination by a selected medical practitioner (‘SMP’) in order to determine their eligibility under the scheme for the payment of illhealth benefits. An SMP is a single qualified medical practitioner: PPR reg 2 and sch 1 para 1. They are, save in very rare circumstances, independent medical experts and, as such, are defendants in their own right in actions for judicial review of their decisions: see R (Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin); R (Northumbria Police Authority) v Broome [2005] EWHC 2644 (Admin); [2006] ICR 555.[16]Once instructed, the SMP is required to send a report to the scheme manager giving an opinion on the likelihood and likely timing of the person’s becoming permanently unfit for performing the ordinary duties of a member of the police force: PPR reg 39(1). That includes any of the essential functions and all of the operational duties of a hypothetical constable of that force: R v Sussex Police Authority ex p Stewart [2000] EWCA Civ 101; [2000] ICR 1122: 1132A, F.[17]In giving his opinion on this, the SMP must consider the likelihood of the person’s becoming unable to perform those duties: PPR reg 39(2)(a), and the likelihood of that inability continuing until the day when the person reaches normal pension age under the scheme or dies: PPR reg 39(2)(b).[18]The person must be given a copy of the report: PPR reg 39(3). Subject to an appeal, this becomes “the final medical report” pursuant to PPR reg 35(1)(a).[19]The scheme manager must then apply the opinion in the final medical report and apply the advice from the scheme actuary in order to determine whether the risk that the person will retire on the grounds of permanent medical unfitness (‘risk’) is such that the likely cost of providing them with benefits under the scheme is “disproportionately high”: PPR reg 36(4). It will be disproportionately high if more than 50% greater than the likely cost of providing benefits under the scheme to a person who has not been identified as presenting a risk of retiring on the grounds of permanent medical unfitness: PPR reg 35(2).[20]If the scheme manager determines that the cost is disproportionately high, the person is, by enactment, ineligible under the scheme for payment of illhealth benefits: PPR reg 36(5). If the cost is not disproportionately high, they are eligible: PPR reg 36(6). The scheme manager determines the likely cost of providing benefits and then the enactments determine eligibility.[21]Where an officer is ineligible, they pay a reduced member contributions rate, 2.5% lower than the standard rate: PPR regs 38(1) and 170(2), (4).[22]A person has the right to appeal against the SMP’s report where the scheme manager determines that the cost is disproportionately high: PPR reg 40(1). If the person appeals, they must present evidence that they have been examined by a registered medical practitioner who disagrees with the opinion in the SMP’s report: PPR reg 40(2). The scheme manager must then ask the SMP to consider that evidence and, if necessary, to produce a revised report: PPR reg 40(3), which (if produced) becomes the final medical report: PPR regs 35(1)(b) and 40(5).[23]The person must be given a copy of the revised report: PPR reg 40(4). Within 28 days of receipt, the person can give written notice to the scheme manager that he is dissatisfied with the opinion: PPR reg 41(1). If so, the scheme manager must appoint a third registered medical practitioner to examine him: PPR reg 41(1).[24]The third registered medical practitioner must send a written statement giving his opinion on the likelihood and likely timing of the person’s becoming permanently medically unfit for performing the ordinary duties of a member of the police force: PPR reg 41(3). If the practitioner disagrees with any part of the revised report then this must be by way of a further revised report: PPR reg 41(4)(a), which becomes the final medical report: PPR regs 35(1)(c) and 41(4)(b).[25]On receipt of a further final medical report, the scheme manager is required to perform a determination of the risk de novo pursuant to PPR regs 36(4)- (6) as stated above.[26]Where an officer is ineligible under the scheme, a scheme manager may refer them to an SMP in order to re-determine their eligibility PPR reg 37(1)- (2).[27]The Home Office’s disability impact policy statement states (under the heading “Exclusion from the Scheme”): Individuals whose pension costs are likely to be disproportionately high due to their risk of early retirement on the grounds of ill health, will be excluded from all ill health benefits under the Police Pension Scheme. This means that an ill health retirement award, or a deferred or ordinary police pension, cannot be paid on ill health grounds. This applies whether the ill health is related to a disability under the Equality Act or not. The policy statement confirms that the Police Pension Scheme complies with the Equality Act 2010.[28]The Home Office issued a circular in 2004 explaining the amendments to the Police Pensions Regulations 1987 in light of the police service’s being brought within the scope of the Disability Discrimination Act 1995 [A-118]. The amendments concerning the exclusion of police service recruits from the ill-health benefits of the Police Pension Scheme are materially identical to those in the Police Pensions Regulations 2015. The circular explained that the effect of the exclusion provisions was and is [A-120]:(i) The SMP is required only to give an opinion on the prospects and likely timing of permanent disablement. They are not required to comment on whether an applicant would be able to remain in the force despite the permanent disablement or on the cost of ill-health benefits;(ii) The medical decision of the SMP or, in the case of an appeal, the third medical practitioner, is binding on the police pension authority. It must apply that medical opinion to the reference tables provided by the Government Actuary’s Department;(iii) The tables provided by the Government Actuary’s Department are binding on the police pension authority. It must include or exclude the applicant as set out in the tables;(iv) The police pension authority decision is final and not subject to review in the case of a person who joins the police. It can be considered again only after a period of three years in the case of an applicant who declines to join the service and wishes to reapply later.[29]The Government Actuary Department created an “exclusion matrix” to determine whether the likely cost of providing a person with ill- health benefits was disproportionately high for the purposes of PPR reg 36.[30]The Police Injury Benefit Regulations 2006 provide compensation to a police officer who suffers disablement arising from an injury on duty. They set out a separate scheme which operates separately to the PPR. The 2006 Regulations do not form part of the claimant’s pleaded case and operate separately to the ill health retirement provisions of the PPS 2015. The nature of the claimant’s Tribunal claim[31]The claimant brings claims for discrimination arising from disability (s15 Equality Act 2010 (EA 2010), direct discrimination (section 13 EA 2010) and breach of the duty to make reasonable adjustments (s20 EA2010). All three claims relate to the denial to the claimant of any and all ill health retirement benefits under the PPS rather than simply excluding the claimant from ill health retirement benefits arising from his knee condition.[32]Sections 13, 15 and 20 of EA 2010 describe the types of discrimination claimed. Sections 61 and 62 of the EA 2010 read together with s120 EA 2010 set out the gateway for the claimant’s claim in the Tribunal. Those sections so far as material state: s61 Non-discrimination rule (1) An occupational pension scheme must be taken to include a nondiscrimination rule. (2) A non-discrimination rule is a provision by virtue of which a responsible person (A)—(a) must not discriminate against another person(b) (B) in carrying out any of A's functions in relation to the scheme; … (3) The provisions of an occupational pension scheme have effect subject to the non-discrimination rule. (4) The following are responsible persons— (a) the trustees or managers of the scheme; (b) an employer whose employees are, or may be, members of the scheme;(c) a person exercising an appointing function in relation to an office the holder of which is or may be, a member of the scheme. … (7) A breach of a non-discrimination rule is a contravention of this Part for the purposes of Part 9 (enforcement). 62. Non-discrimination alterations: (1) This section applies if the trustees or managers of an occupational pension scheme do not have power to make non-discrimination alterations to the scheme. (2) This section also applies if the trustees or managers of an occupational pension scheme have power to make non-discrimination alterations to the scheme but the procedure for doing so— (a) is liable to be unduly complex or protracted, or (b) involves obtaining consents which cannot be obtained or which can be obtained only with undue delay or difficulty. (3) The trustees or managers may by resolution make non-discrimination alterations to the scheme. (4) Non-discrimination alterations may have effect in relation to a period before the date on which they are made. (5) Non-discrimination alterations to an occupational pension scheme are such alterations to the scheme as may be required for the provisions of the scheme to have the effect that they have in consequence of section 61(3)." Section 120 Equality Act 2010 – Jurisdiction – provides: … (2) An employment tribunal has jurisdiction to determine an application by a responsible person (as defined by section 61) for a declaration as to the rights of that person and a worker in relation to a dispute about the effect of a non-discrimination rule. (3) An employment tribunal also has jurisdiction to determine an application by the trustees or managers of an occupational pension scheme for a declaration as to their rights and those of a member in relation to a dispute about the effect of a non-discrimination rule 25.[33]The respondent seeks to rely on the statutory defence in Schedule 22 paragraph 1 of EA 2010 which states: "A person (P) does not contravene a provision specified in the first column of the table, so far as relating to the protected characteristic specified in the second column in respect of that provision, if P does anything P must do pursuant to a requirement specified in the third column.” Strike out/abuse of process[34]The power of the Tribunal to strike out a claim is set out in rule 37 of the Employment Tribunals Rules of Procedure 2013: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds-(a) that it is scandalous or vexatious or has no reasonable prospects of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[35]The grounds set out in rule 37(1)(a) include anything which amounts to an abuse of process. What amounts to an abuse depends on all the circumstances. The categories are not closed and considerations of public policy and the interests of justice may be very material Ashmore v British Coal Corporation [1990] ICE 485. The Tribunal must approach the question of strike out in two stages: first to ask whether one of the specified grounds has been established; second to consider whether the case should be struck out or if some other lesser order should be made HM Prison Service v Dolby [2003] IRLR 694.[36]As to unreasonable conduct at rule 37(1)(b), the two cardinal conditions for striking out a claim are deliberate and persistent disregard of required procedural steps or where conduct makes a fair trial impossible. If so, the tribunal should consider whether striking out is proportionate. Blockbuster Entertainment v James [2006] EWCA Civ 684 and Bolch v Chipman [2004] IRLR . When considering whether a fair hearing is still possible it is necessary to consider whether on the facts no fair hearing can take place and if strikeout or some other lesser order or sanction is appropriate. There can be no fair hearing in the premises of a breach of the principle of natural justice that a person has the right to be heard on their case. The argument for strike out.[37]The respondent argues that the claims have no reasonable prospects of success and/or that it is an abuse of process for the claimant to bring the claims as he does in the Tribunal.[38]The respondent argues that the terms of the PPS are set by delegated legislation and it would therefore be unlawful for him not to follow them. The respondent argues that the rejection of the claimant’s entitlement to IHR benefits was in fact a rejection as a result of a mathematical exercise shorn of discretion: the respondent had no choice but to act as he did. The respondent says that it had no choice but to reject the claimant’s application for eligibility based on the statutory rules of the scheme. Given that, says the respondent, either the claimant’s claim is without merit or it is otherwise an abuse of process for the claim to be pursued in the Employment Tribunal. The respondent’s position is that this in fact a public law claim which should be dealt with by judicial review in the civil courts. The argument is that the availability of judicial review as a remedy means that it is an abuse of process for the claimant to choose to pursue the claim in the Tribunal instead.[39]The claimant argues that the effect of sections 61 and 62 of EA 2010 is to remove the availability of the statutory defence contained in schedule 22 para 1 Equality Act 2010 so that even though the respondent is applying a statutory pension scheme it is still possible to hold him liable for discrimination under EA 2010 as he does so.[40]The respondent asserts that schedule 22 allows him to argue, in effect, that it is not his fault that the legislation forces them to make this decision and does not permit him to exercise his own discretion. Therefore, the respondent should not be liable for problems which are intrinsic to the statutory scheme as drafted. This develops into an argument that the correct respondent is the government, not the employer, so the current proceedings are an abuse of process/have no reasonable prospects of success.[41]The claimant relies upon the most recent decision of the EAT in London Fire Commissioner and others v Sargeant and others UKEAT/0137/17/LA (12th February 2021. Paragraphs 29 to 33 and 36 to 39 of the judgment set out the arguments of the appellants in that case thus: “THE FRAs’ SUBMISSIONS29. Paragraph 1(1) of Schedule 22, provides for a defence (“statutory authority”) where a “legislative provision requires an employer to act in regard to its employees in a manner which gives rise to age discrimination.” Applying that proposition to the firefighters' claims:- (1) the protective provisions which constitute age discrimination (i.e. the 2015 Scheme Regulations) are enactments within the terms of paragraph 1(1)of Schedule 22; (2)FRAs are required to apply those legislative provisions to their staff; (3)hence, the FRAs, in discriminating on the grounds of age by acting in that way, are required so to act by an “enactment” and have a defence under paragraph 1(1) of Schedule 22 to these claims of age discrimination30. This, straightforward, interpretation of paragraph 1(1) of Schedule 22, gives substantive effect to its purpose. Parliament made and enacted the Public Service Pensions Act 2013. The DCLG through the Secretary of State made the 2014 Regulations for England and the Welsh Ministers made the 2015 Regulations for Wales.31. The FRAs were powerless in regard to the content of the laws that apply to them and their employees under the 2013 Act and the Pensions Regulations.32. In the light of the above, it is fair and consistent with paragraph 1(1) of Schedule 22, for the FRAs to be able to rely on the defence provided by paragraph 1(1) to the claims for age discrimination. The Claimants are not left without an appropriate party against whom they can claim age discrimination despite paragraph 1(1) of Schedule 22. Those parties are, respectively, the Secretary of State and Welsh Ministers who were involved in the making of the 2015 Scheme Regulations. Those claims have been made and have succeeded. Thus, paragraph 1(1) of Schedule 22 represents a fair and proper distribution of potential liability to the firefighters' claims. There is no means by which the ET in determining remedies can do justice to the position of the FRAs, whose responsibility for the acts of discrimination is negligible when compared with that of the central government bodies which made the discriminatory 2015 Scheme Regulations. The FRAs and the central governments are jointly and severally liable. The Civil Liability (Contribution) Act 1978 does not apply to Tribunal awards. The only route by which justice can be done to the FRAs and the claimants is to permit the FRAs to avail themselves of the defence provided by paragraph 1(1) of Schedule 22, relieving the FRAs of liability and leaving central government as exclusively responsible and liable in law.33. The FRAs contend that the decisions of the EAT and CA in respect of the justification issue serve to underscore the fact that it was central government which took the decisions resulting in the provisions in the 2015 Scheme Regulations, the application of which to their relevant employees resulted in acts by the FRAs which were discriminatory on the grounds of age. This, it is said, strengthens the argument that the FRAs can and should in equity be able to avail themselves of the statutory defence provided by paragraph 1(1) of Schedule 22. …. 36. The FRAs do not accept that is what section 61 (and section 62) say or mean. They contend that all section 61 does is to introduce a rule which allows “responsible persons” to be liable for discrimination in respect of pension schemes. It does not purport automatically to amend the laws applicable to a pension scheme with the consequence that the FRAs were not obliged to apply laws which were found, at the end of litigation, to have been discriminatory. For each of the 49 English and 3 Welsh FRAs to have the power to disapply parts of the 2015 Scheme would cause chaos and would place an impractical and unfair burden on the FRAs. There would be major difficulties when a firefighter moved from one FRA to another. That cannot be what the law requires. 37. It is contended that section 61 does no more than introduce a nondiscrimination rule into occupational pension schemes. All that means is that “a responsible person” can face liability if he or she discriminates against another in connection with the pension scheme. When section 61(3) states that the provisions of an occupational pension scheme have effect “subject to the non-discrimination rule” it means that the risk of liability for discrimination is part of the scheme. Section 61 does not, and does not purport to, alter automatically any rules of the pension scheme by removing any discriminatory provisions. That is not what section 61 states. The section does no more than apply the law against discrimination to decisions and actions about pensions and does not purport to alter the terms of pension schemes themselves. It would be an overambitious project for Parliament to enact that the rules of pension schemes are automatically altered in connection with something which is so often as uncertain as alleged discrimination. Only the clearest possible wording would force such an interpretation on a Court or Tribunal whereas, in fact, section 61 simply does not say anything like that THE FRAs’ SUBMISSIONS ON THE SCOPE AND EFFECT OF SECTION 62 OF THE EA 38. The FRAs submit that section 62 provides a power (not a duty) to trustees and managers of a pension scheme to alter the scheme but, it is contended, the FRAs are neither “trustees nor managers” of the 2015 Schemes as those words are used in Sections 61 and 62 of the EA. 39. Section 62 contains a power for certain persons to make “non-discrimination alterations” to a pension scheme. Those persons are confined to “the trustees or managers” of an occupational pension scheme. The terms of section 62, it is said, support the submission that section 61 does not provide for an automatic amendment to and re-writing of pension schemes. If section 61 had that meaning, there would be no scope for section 62, which empowers certain limited persons or bodies to do precisely that, to amend the rules of pension schemes. If section 61 automatically changed the pension rules there would be nothing for the persons or bodies identified in section 62 of the EA to amend. The pension rules would have been changed automatically.”[42]The substance of the EAT’s decision in Sargeant is set out at paragraphs 110-116 and 123-126 thus: SECTION 61110. Section 61 provides: (1) that an occupational pension scheme must be taken to include a non-discrimination rule and, (3), that the provisions of the scheme have effect subject to the non- discrimination rule. It provides in (7) that a breach of a non-discrimination rule is a contravention of the EA.111. A non-discrimination rule is a provision by virtue of which a responsible person (which includes each of the FRAs) must not, among other things, discriminate against another person in carrying out any of their functions (subsection (2)).112. In my judgment these provisions, by their proper construction, operate by making the non- discrimination rule a part of the scheme by operation of law i.e. by virtue of a statutory provision. Subsection (1) says so in terms. Such a scheme “must be taken to include” such a term. Furthermore, subsection (3) says in terms that the non-discrimination rule, which the Scheme must be taken to include by reason of this statutory provision, overrides the provisions of the Scheme. They are expressly stated to be subject to it.113. Thus, if, as here, a provision of an occupational pension scheme, though contained in subordinate legislation, would oblige a responsible person to discriminate against another person on the ground of age, that provision is subject to the non-discrimination rule, which the scheme must be taken to include. That rule obliges the responsible person not to discriminate. Accordingly, by reason of the hierarchy of obligations provided for, the responsible person, by discriminating against that person, breaches the rules of the scheme (the non-discrimination rule having precedence) and thereby contravenes the EA (subsection (7)).114. Applying this analysis to paragraph 1(1) of Schedule 22, the FRAs, by applying the 2015 Scheme Regulations, thereby discriminating against the Claimants on grounds of age, are not doing something they are obliged to do by the regulations. Rather, by so acting, they are in breach of the terms of the scheme, by virtue of the non-discrimination rule which the scheme must be taken to include and to which the other terms of the scheme are subject. By that breach they are in contravention of the EA. That contravention is not, however, something which they must do pursuant to a requirement specified in an enactment. On the contrary it is something which they are obliged by the terms of the scheme, including the nondiscrimination rule, not to do. By doing so they are in breach of its terms.115. It follows that I do not accept the FRAs primary contention that the ET erred in law in its construction of Section 61 or its impact on the availability of the defence provided by paragraph 1(1) of Schedule 22 of the EA.116. Given that construction of section 61, I do not accept the contention of the FRAs that they had no option but to act in a way that, after litigation, has been found to have been unlawfully discriminatory against the claimants on grounds of age. The way in which section 61 works is clear. It prohibits the FRAs from acting in a manner which discriminates on the grounds of age and it prioritises that obligation over other provisions which would oblige them to act in that way. In this way it gives effect to the UK Government’s obligations under EU Directive 2000/78.[43]The claimant submits, in reliance on Sargeant, that it cannot be said that the claimant’s arguments in respect of the effect of sections 61 and 62 EA 2010 and the availability of the statutory defence contained in Schedule 22 para 1 EA 2010 have no reasonable prospects of success. Rather, Sargeant is on all fours with the current case. The claimant says that it is clear from the decision in Sargeant that the Employment Tribunal is the correct forum to challenge the failure to comply with section 61 of EA 2010. The respondent is a responsible person under section 61(4)(a) and 61(4)(b) Equality Act 2010 when read together with section 212(11) Equality Act 2010 and section 124 Pensions Act 1995. A breach of Section 61 is, by virtue of section 61(7) Equality Act 2010, a contravention of the Equality Act for the purposes of Part 9 (Enforcement). (See paras 134 and 135 in Sargeant.)
Conclusions
[44]The first of the arguments raised by the respondent is that the Chief Constable is not the correct respondent because the case concerns a statutory pension scheme and that the claimant’s correct course of action would be to pursue the Home Secretary via judicial review. It is asserted that to present employment tribunal proceedings with the Chief Constable as respondent is an abuse of process or, alternatively, is a claim with no reasonable prospects of success.[45]Following the decision of the EAT in Sargeant, which was an analogous situation, I conclude that there is a legitimate argument that the respondent should be liable for any acts of discrimination in this case when the relevant statutory provisions are read together. In light of Sargeant I conclude that it cannot be said that the claimant’s argument in respect of the effect of sections 61 and 62 Equality Act 2010 and the availability of the statutory defence in schedule 22 para 1 EA 2010 have no reasonable prospects of success. The mere fact that the claimant could, as an alternative, write to the Home Secretary and request changes to the regulations and the scheme and then judicially review the resultant decision by the Home Secretary does not rob the Tribunal of jurisdiction as provided for by EA 2010. There are often cases where there are two concurrent jurisdictions and avenues for litigation open to a claimant and it is for the claimant to choose which option to avail himself of. Some claimants may well decide that the public law claim is more apt but it is nevertheless open to this claimant to pursue the claim in the Tribunal and to argue that the respondent discriminated against him in operating the provisions of the pension scheme. The words of section 61 and 62 draw no distinction between occupational pensions which are set out in legislation and those which are not. Indeed section 62 specifically appears to deal with the situation where the respondent is otherwise hamstrung by limitations on its ability to alter the terms of the pension scheme (i.e. because they are statutory). The claimant’s argument has reasonable prospects of success and is not an abuse of process.[46]In light of the decision in Sargeant it cannot be said that the Claimant’s arguments in respect of the effect of section 61 and 62 of the EA2010 have no reasonable prospect of success. Instead, there is authority which is apparently in favour of the claimant’s argument. I also note that the claimant suggests that the Home Office Circular 016/2014 [A256] lends further support to the argument that policies arising from the PPS can be varied and so can aspects/terms of the scheme (para 16 claimant’s skeleton argument).[47]The respondent seeks to persuade me that the real person with responsibility for any discrimination in this case is the Home Secretary. The legislation was drafted by the Home Office hence only the Home Office can make changes to it. Sections 61 and 62 and Sargeant would suggest otherwise. I take on board the respondent’s practical argument in relation to the litigation, however. It is said that any determination of the substance of this claim will have to examine the aims of the allegedly discriminatory provisions and consider whether they are a proportionate means of achieving those aims. Likewise, the reasonableness of the proposed adjustments would need to be considered, for which evidence of the comparative consequences of the provisions as currently drafted as compared to any amendments would need to be led. All such evidence, it is said, is within the Home Office’s purview. It is argued that the issues could not be properly considered and determined without the input of the Home Office as a respondent to these proceedings. Only the Home Office can properly run the “proportionate means of achieving a legitimate aim” defence as it is the Home Office who considered how the legislation should be drafted, what it should achieve and what its impact would be. This respondent points to the fact that the relevant government departments were involved as respondents in the analogous situation in Sargeant and says that this indicates that they should not be omitted from these proceedings.[48]I agree. The Home Office should be a respondent to these proceedings. However, that does not mean that this respondent should be removed. It is notable that in Sargeant there were multiple respondents representing both the government departments and the relevant pension scheme managers etc. The correct solution to the problem in this case is to add the Home Office as a second respondent rather than to remove the Chief Constable from the proceedings or strike out the claim altogether. That solution would deal with the Chief Constable’s practical and evidential predicament in defending the provisions of the pension scheme which he had no part in drafting. It would also be the proportionate response to the argument which would still facilitate a fair trial in this case. I remind myself of the submissions that have been made about the two-stage process to a strike out decision. At the second stage I have to decide whether the strike out is the correct and proportionate response. Here I conclude that the proportionate response which facilitates a fair trial is to add a second respondent rather than strike out the proceedings.[49]The respondent further seeks to argue that the claims as pleaded have no reasonable prospects of success. The claimant has clarified that in the s15 claim the “something arising” from disability was the medical prognosis of Dr Adejoro that the claimant was likely to be medically unfit for performing the ordinary duties of a member of the police force within 11 to 20 years. The “unfavourable treatment” was the claimant being ineligible for any and all ill health retirement benefits under the PPS. The claimant argues that the unfavourable treatment cannot be justified as a proportionate means of achieving a legitimate aim in circumstances where the respondent has failed to comply with s61 and 62 of the Equality Act. It seems to me that this claim is logically put and has a reasonable prospect of success. It will be a matter for a Tribunal to determine at a final hearing after hearing the evidence and making relevant and necessary findings of fact. I should not attempt to resolve it at this stage. Whether the respondent should be liable for the outcome of the PPS process when he was not exercising a discretion but was applying the requirements of the scheme is a matter for a final hearing. It cannot be said that the claimant’s position on this does not have reasonable prospects of success. The Tribunal at the final hearing will hear submissions and make determinations as to the impact of the Sargeant case. The section 15 claim does not fall to be struck out as a having no reasonable prospects of success at this preliminary stage.[50]The claim of a failure to make reasonable adjustments relies on the three PCPs set out at paragraph 48 of the Grounds of Complaint namely:(1) The terms of the respondent’s 2015 Pension Scheme;(2) The application of the respondent’s 2015 Pension Scheme;(3) The respondent’s failure to limit the exclusion of IHR benefits to the claimant’s knee condition. PCPS 1 and 2 are clearly PCPs of general application on an ongoing basis which can be said to be applied to both disabled and non-disabled police officers. The Tribunal at a final hearing can therefore determine whether they put a disabled person at the necessary disadvantage so as to trigger the duty to make reasonable adjustments. For the purposes of this preliminary hearing they are workable PCPs with reasonable prospects of success.[51]The third PCP may seem, at first blush, to be applicable only to the claimant or not to constitute a PCP within the meaning of the Act as it refers only to the claimant’s particular exclusion from the IHR benefits. However, in reality, it seems to me that the PCP is ‘driving at’ the fact that the pension scheme, as applied across the board to all officers, excludes an officer with a preexisting condition from all IHR benefits upon becoming incapacitated whether that incapacity arises from the pre-identified condition or arises from an altogether separate or new condition. In the claimant’s own case this meant that he was excluded from the benefits whether or not his incapacity arose from his knee condition or something completely unrelated. It might be said that the PCP as currently drafted does not make this completely clear and may be open to misinterpretation. However, in my view this is something to be corrected by suitable clarification of the PCP rather than by striking out the case based upon it. A strike out would not be proportionate and it cannot be said that the PCP, correctly understood, has no reasonable prospects of success at this stage. It is something which deserves to be argued and determined on its merits.[52]I take the points raised by the respondent at paragraph 57 of its skeleton argument. Of course, the respondent did not draft the 2015 scheme so in that sense it is not “the respondent’s” pension scheme. However, it is the respondent’s scheme insofar as it is the scheme operated by the respondent for the officers in his force. Further, the scheme was in operation in relation to officers of the respondent’s force over a period of time and so can be fairly said to be a PCP. It was an ongoing state of affairs, applied to officers of the force, that their eligibility for benefits would be determined by the terms of the 2015 scheme which would be applied to the facts and circumstances of each individual’s case. I do not consider that these PCPs fall foul of the comments made in Ishola v Transport for London [2020] EWCA Civ 112 (at paragraphs 37 and 38). The PCPs in this case do connote a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. They refer to a practice which connotes some form of continuum in the sense that it is the way in which things generally are, or will be, done. Indeed, the judgment in Ishola indicates that a one-off decision or act can be a ‘practice’, although it is not necessarily so.[53]The respondent goes on to argue that the reasonable adjustments contended for by the claimant cannot be reasonable adjustments because it was not open to the respondent to deem the claimant eligible for ill health retirement benefits- his eligibility was determined by enactment. However, the argument that the Tribunal will have to address at the final hearing is whether sections 61 and 62 of the Equality Act do in fact require or permit the respondent to act differently from the apparent requirements of the PPS 2015. That is a substantial argument for a final hearing and it cannot be said to have no reasonable prospects of success at this preliminary stage.[54]In the direct discrimination claim the claimant asserts that his exclusion from eligibility for all and any IHR benefits was the less favourable treatment because of his disability or perceived disability (see paragraph 45 respondent’s skeleton argument and paragraph 10 of the claimant’s skeleton argument). Again, it cannot be said that this argument has no reasonable prospects of success at this stage. It may be that the reason for the less favourable treatment was actually “something arising from” disability rather than the disability itself but this is something which should be determined at the conclusion of evidence and submissions in a final hearing. The claimant should be able to put his claim as section 13 or section 15 in the alternative so that he is not artificially deprived of a remedy at the final hearing if it is found that he has abandoned the wrong cause of action on the facts of the case as subsequently determined by the Tribunal.[55]The respondent further argues that the claim falls to be struck out as an abuse of process where he brought no statutory appeal in respect of the SMP’s opinion and signed a document stating that he wished to bring no appeal against his exclusion for ill-health benefits under the PPS. I do not accept this. The claimant was not obliged to bring such an appeal instead of (or before) pursuing Tribunal proceedings. Such an appeal was not the appropriate route to a remedy for the claimant in the circumstances of this case. He is not complaining about the SMP’s medical conclusions and the statutory appeals scheme did not permit him to appeal on the basis of the argument that that he now seeks to run in the Tribunal. The appeal would be no substitute for the Tribunal claim. In those circumstances it is hard to see how the Tribunal claim is an abuse of process. The claimant did not sign away his right to go the Employment Tribunal when he decided not to mount an internal appeal within the pension scheme. By presenting the claim to the Tribunal, the claimant is not asking the Tribunal to rule that the SMP’s medical conclusions were incorrect, rather that to respond to the medical evidence in the way that he did was discrimination for which the respondent should be held liable. The limitation issue The law on limitation[56]The Equality Act 2010 s123(3) provides that “conduct extending over a period” is to be treated as done at the end of the period but that a failure to do something is to be treated as occurring when the person in question decided on it.[57]In Barclays Bank v Kapur 1989 ICR 753 the complaint was that the respondent bank had unlawfully discriminated against the claimants in failing to credit them with previous service in Africa for the purposes of computation of their pensions, unlike employees of European origin who had their previous service included. It was held, on appeal, that the bank’s requirement in relation to the applicants’ employment that their previous service in Africa would not be credited for pension purposes, although originally made many years before the complaints were brought, had the effect of subjecting the claimants to a continuing disadvantageous regime and that accordingly in each case the act complained of was one extending over a period which was to be treated as done at the end of the period i.e. at the moment when their employment came to an end and that the complaints had thus been lodged within the time limit. Neil LJ’s judgment stated: “Another way of putting the case, however, it is submitted, is to say that they have been subjected to continuing acts in relation to their employment which have continued throughout the period. Their lack of pension rights equivalent to those of European comparators has meant that they have throughout their employment been discriminated against in the way in which the employer has afforded them access to benefits. Alternatively, their continuing lack of comparable pension benefits amounts to being subjected to a detriment. It was therefore submitted that it was right to regard the applicants as being subjected to a continuing regime which gave them unfavourable pension rights as compared with Europeans in a similar position. The position was similar to that of a person who on racial grounds was prevented from using some staff facility. In such a case the deprivation would be a continuing deprivation, and it would not be any answer to a complaint, that deprivation had first occurred more than three months before the complaint to the industrial tribunal was lodged. In my judgment this argument on behalf of the applicants is sound. If these applicants had been paid at a lower rate than Europeans this discrimination would plainly be a continuing act of discrimination. It seems to me that the right to a pension forms part of the overall remuneration of an employee and that if his pension entitlement can be shown to be less favourable than that of other employees this disadvantage continues throughout the period of his employment. In the case of the two applicants who have now retired, their right to a pension can be judged at the moment of retirement which in both cases was less than three months before the date when their applications were lodged. I say nothing at this stage as to the merits of the claim but if, for example, these two men can show that at the moment of their retirement they were afforded access to pension benefits which were less favourable than those afforded to other people, they may be able to establish a case of unlawful discrimination. Bingham LJ stated: The applicants, however, rely on section 68(7)(b), which provides that for the purposes of deciding when the act complained of was done "any act extending over a period shall be treated as done at the end of that period." Here, say the applicants, the bank's discriminatory behaviour against them began when they were employed on disadvantageous terms, but did not end then, because the bank (which could at any time have caused the applicants' pension entitlements to take account of their previous service) chose to maintain and keep in force the discriminatory regime to which the applicants were subject. Whether the terms of the applicants' employment in this country were or became discriminatory, and if so whether that discrimination had anything to do with race, is at this stage wholly speculative. The question so far litigated is not whether the complaints are justified but whether they may be investigated. I am, however, persuaded that to maintain and keep in force a discriminatory regime, rule, practice or principle may be "an act extending over a period" and so be treated as done at the end of the period, provided it can be shown to have had a clear and adverse effect on the complainant. The authorities bundle prepared for this hearing contained the report in relation to Kapur at the Court of Appeal. Of course, the case went to the House of Lords where it was again found that the case concerned an act extending over a period. I refer to the speech of Lord Griffiths which sets out the reasoning of the House of Lords.[58]In Calder v James Finlay Corp [1989] ICR 157 an employer declined to grant a female employee a mortgage subsidy where the scheme was not open to women. This amounted to ongoing discrimination in the way the respondent afforded the claimant access to it.[59]In Sougrin v Haringey Health Authority [1992] ICR 650 the headnote indicates that: "the act complained of" for the purposes of section 68 was that the authority had refused to upgrade the applicant while upgrading her comparator and not that it operated a policy or rule not to upgrade black nurses, the discriminatory act was a once for all event, occurring at the latest on the dismissal of her appeal; and that the payment of a lesser salary than that paid to her comparator was therefore not an "act extending over a period" within the meaning of section 68(7)(b) but the continuing consequence of that event; and that accordingly since the applicant had not presented her complaint within three months of the dismissal of her appeal the industrial tribunal had correctly declined jurisdiction.”[60]Where a claimant has failed to bring their claim within the primary limitation period the obligation is on them show that they have brought their claim within such other period as is just and equitable Robertson v Bexley Community Centre [2003] EWCA Civ 576 at [25]. Conclusion on limitation[61]I have to consider what the discriminatory acts in this case are said to be before I can determine whether they are “one off” acts or decisions which start the limitation “clock” running or whether they are continuing states of affairs which are in place throughout he claimant’s time as a police officer.[62]In the section 15 claim the unfavourable treatment complained of is not a “decision” or the SMP’s “one off” report. Rather it is the claimant’s continuing status of ineligibility for IHR benefits which will endure for as long as the PPS is maintained in its current form. The start of the discriminatory act/state of affairs may have been the production of the SMP’s report but that state of affairs is ongoing. For as long as the scheme is implemented in this way by the respondent, then the claimant will be excluded from benefits under it. Likewise, the three PCPs identified at paragraph 48 of the Grounds of Complaint relate to the ongoing state of affairs so long as the PPS is in place in its current form. The reasonable adjustments contended for at paragraph 52 of Grounds of complaint are: “To remove or reduce the disadvantage caused by the scheme. For example, the claimant could be deemed ineligible from receiving IHR benefits in the event that he is unable to fulfil the duties of an officer due to his knee condition, but deemed eligible should he develop an unrelated and separate condition. To treat the additional risk as an excluded risk without any adjustment to the contribution”. These proposed adjustments could be made, on the claimant’s case, at any stage during which the PPS applies to the claimant. This would be an ongoing state of affairs. The same can be said of the direct discrimination claim. It complains of an ongoing exclusion from eligibility under the scheme.[63]In my view this claimant’s claim is analogous to the cases of Kapur and Calder. There is alleged ongoing discrimination in the way the respondent affords access to benefits under the scheme when taking into consideration the provisions of the PPS 2015 and the obligation (for which the claimant contends) to make changes to it under s61 and 62 of the Equality Act 2010. The SMP’s report may well have been a single act but that is not the discriminatory act complained of by the claimant. Rather he complains of ongoing ineligibility under the scheme. It is not analogous to a “one-off” decision not to promote an employee. The SMP’s report may well have been the trigger for that ongoing ineligibility but is not, in itself, the entirety of the act complained of. It is just one part of the ongoing state of affairs. The same is true of Mr Wilks’ actions on receipt of the SMP’s report. It is analogous to the offer of terms and conditions of employment which are discriminatory in nature when offered and which continue to be so for the duration of the contract in question.[64]In those circumstances, as the claim relates to a continuing state of affairs, it has not been presented outside the primary limitation period and the issue of exercising my discretion to extend the time limit on the basis that it is “just and equitable” to do so does not arise. In any event I would have been minded to extend time on the just and equitable basis taking into account the balance of hardship and injustice between the parties and all the relevant factors in the case. The following factors are of particular relevance:(a) The claim relates to an argument of disability discrimination in the application of a pension scheme. It is a technical and specialist argument which an individual police officer would struggle to pursue without expert advice and guidance. He would not reasonably be expected to realise he had a claim without such advice.(b) In 2016 the claimant relocated to the UK from New Zealand. He was entering a new jurisdiction and would not have the same “general knowledge” of the legal system and the availability of remedies for discrimination in the Employment Tribunal as a person who had lived in the UK for a considerable period of time. This claimant would be even more reliant on the advice and guidance of employment law specialists. It was reasonable for him to be ignorant of his rights.(c) The claimant approached the Police Federation for guidance reasonably promptly in May/June 2017 given the context of his joining the force.(d) Following the claimant’s approaching the Police Federation their computer system apparently fell victim to a cyber-attack and this delayed the Federation in dealing with the claimant’s case. Although there is some lack of particularity in the evidence as to what happened and when, this is not to be laid at the claimant’s door. He has done his best to pursue the claim. The impact of a cyber-attack is entirely outside his control and he should not be penalised for it. His case was not dealt with and progressed until 2019/2020. During this period, he was reasonably unaware of whether he had a potential claim or whether such a claim could be said to be time barred. The claimant had a good reason for delaying presenting his claim to the Tribunal. He needed the advice and assistance of his legal representatives.(e) During the relevant period the claimant did chase his police federation representative for updates on the progress of the case. He could not do more than this and could not be expected to present a claim of this nature to the Tribunal without the benefit of their input. He is not to blame for this delay.(f) If the case were not allowed to progress then the claimant would be denied a remedy for a potential legal wrong with significant financial and practical consequences for him. On the other hand, if the case is allowed proceed the respondent will be able to defend it on its merits. This is a case which is apparently heavily reliant on documentary evidence. There is nothing to suggest that the cogency of the available evidence has been significantly adversely affected by the delay in this case. The respondent has not been able to indicate that its ability to defend the claim successfully has been undermined by the delay. As a result of the above the balance of prejudice would fall in favour of allowing the claim to proceed to a final hearing and I would have extended time on a just and equitable basis. Next Steps[65]In light of my conclusion as to the desirability of having the Home Office as a second respondent to this claim I have given a direction that the claimant should serve an amended claim form on both respondents. That amended claim should make clear the basis on which the Home Office is to be treated as a respondent to the claim. The second respondent will then have the usual time to submit an ET3 response and the case will need to come back before an Employment Judge at a further preliminary hearing in order to be case managed to trial.