Mrs V T Barran v Ministry of Justice: 2203380/2012
EMPLOYMENT TRIBUNALS
Case No 2203380/2012
Between
Mrs V T BarranClaimantMinistry of JusticeRespondent
Before
Employment Judge Mr J MacmillanDate 25 May 2017
JUDGMENT
ON AN APPLICATION FOR A RECONSIDERATION The Claimant’s application for a further reconsideration of a judgment dated 21st May 2015 and a judgment on reconsideration dated 23rd February 2017 is refused on the rounds that it has no reasonable prospect of success
REASONS
[1]By an application dated 10th March 2017 Mrs Barran applies for a further reconsideration of my judgment dismissing her claim and that of a colleague, Mr AJ Andrew, on the 21st May 2015 and a reconsideration of my later judgment of the 23rd February 2017 dismissing her first application, made jointly with Mr Andrew, for a reconsideration of that judgment. Mr Andrew is not a party to this renewed application.[2]The grounds of the application could be said to be that fresh evidence has come to light which casts doubt on my original decision although it is not expressly cast in that way. Accompanying the latest application is a letter from Ms Barran’s former Chamber President, Judge Siobhan McGrath, to which is attached a further document which appears to be a print out of a recently generated Judicial Office computer record relating to the pension status of a former colleague of Ms Barran’s, Judge Aileen Hamilton Farey. The reconsideration application turns on the single point that the computer record describes Judge Hamilton Farey’s status when she held the position described in the record as ‘Valuer Chairman’ between 1st July 2011 and 30th June 2013 as ‘fee paid’ whereas I had held on the basis of largely uncontested evidence (and Ms Rachel Crasnow QC who appeared for Ms Barran had indeed submitted) that the status of former Vice-Presidents of the Residential Property Tribunal Service, including Ms Barran and Judge Hamilton Farey, was part-time salaried.[3]In Judge McGrath’s letter which is addressed to Mr David Collins of MoJ Corporate Finance and is copied to Ms Barran in her capacity as lead claimant for RPTS Vice Presidents in these proceedings, Judge McGrath sets out 10 brief extracts from my original judgment and suggests that the extract from Judge Hamilton Farey’s Judicial Office record ‘addresses the evidential requirements’ identified by me in four of those extracts.[4]In response, the Government Legal Department on behalf of the Respondent gives 6 reasons why the renewed reconsideration application should be regarded as an abuse of process and confines its submissions on the substance of the application to the unsubstantiated claim that the extract from Judge Hamilton Farey’s Judicial Office record is a clerical error – it appears to be a choice from a drop down menu presumably made by a relatively low grade civil servant.[5]There is a more fundamental objection to the application. If I may say so with great respect Judge McGrath appears to have confused two concepts. After explaining why the new evidence shows that Judicial Office regarded the Vice-President’s as fee paid rather than as salaried part-timers as I had held, she states, correctly, that ‘The point here is not whether the judiciary were salaried or fee paid for employment purposes …’ but continues incorrectly ‘… rather it is how they were treated for pension purposes.’ How the Vice Presidents were treated for pension purposes has never been in doubt. The issue is why they were treated in a particular way; more exactly whether they were treated in that particular way because of their part-time status. She continues: ‘In the past it was not possible to pay pensions to part-time judiciary and therefore it was necessary to have specific provision in the Rent Act 1977 to provide pensions for VPs. That pension was not in relation to the judicial functions of the judiciary but in relation to their responsibilities as judicial managers.’[6]There then follows what, given the context of the letter – the Hamilton Farey Judicial Office Record – appears to be a non-sequitor. ‘ Taking all of the above into account it seems to me that the reason why there was less favourable treatment for the RP[TS] salaried [ sic – she is of course now contending that they were in fact fee paid] judiciary in the provision of pension entitlement was clearly because of their part-time judicial status.’ That seems to be a contention that although the point here is not whether for employment purposes they were fee paid or part time salaried, the point is whether they were regarded by their sponsoring department as fee paid or part-time salaried and because they were regarded as falling into one category and not explains why they were denied access to the then existing judicial pension scheme. It seems to conflate the basis of payment of remuneration with the status of being part time.[7]In my judgment whether the RPTS Vice-Presidents were regarded by their sponsoring department as fee paid or salaried part timers is wholly beside the point. To claim, as Judge McGrath apparently does in her letter, that it is the key to the question of why access to a judicial pension was denied to the VPs, is a contention based on labelling rather than substance. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 protects workers against less favourable treatment on the grounds of their status as part-timers not the basis on which they were remunerated. The basic facts remain unchanged. The VPs were part-timers but working a fixed number of days per week. Their remuneration – which was fixed and therefore appeared to be a salary - was a multiplier of the daily sitting fee of lawyer chairs within their jurisdiction with a responsibility uplift and they were denied access to the then existing judicial pension scheme, being granted instead individual pension arrangements. I briefly set out in the original judgment the history of the development of the tribunal system in this country and I accepted the Respondent’s contention that the explanation for the denial of access to the judicial pension scheme lay in that history. Whether the VPs were or were not in fact, or were or were not regarded as being, either fee paid or part-time salaried can have no bearing on that historical explanation which was upheld on appeal as justifying my finding that the reason for the less favourable treatment was not their status as part-timers.[8]I regard the new point as being without substance and as having no reasonable prospect of success. The application for a reconsideration is therefore refused.[1]On the 25th May 2017 I dismissed Mrs Barran’s second application for a reconsideration of my judgment dated the 21st May 2015. On the following day Mrs Barran emailed the Tribunal and asked that I delay my decision on her second application pending the resolution of a point which has arisen in parallel proceedings to which she is not a party, namely the ‘which pension’ remedy issue. It is important to note that the decision in respect of which Mrs Barran seeks a reconsideration is a liability issue not a remedy issue. I declined to delay issuing the second reconsideration decision and informed the parties that I would deal with her new point as a separate reconsideration application. I delayed dealing with her new point only out of an excess of caution as, despite the fact that she had failed on liability, there seemed to be a remote prospect that if the new point succeeded in connection with the ‘which remedy’ issue it might provide Mrs Barran with a pension for her judicial service despite having failed on the merits on liability before me.[2]The issue was raised by a Mr Jack, one of the claimants to whom the ‘which pension’ remedy issue applies. His contention is that the ‘which pension’ remedy issue has been superseded by and made academic by the Judicial Pension Scheme (Fee Paid Judges) Regulations 2017 (FPJPS) when read together with Art 5 of the Transfer of Tribunal Functions Order 2013 as Case number 2203380/2012 those regulations give him and other judicial office holders in the former Residential Tribunal Property Service, including Mrs Barran, a full judicial pension for the whole of their service. He invited me to rule that that was the effect of the FPJPS and to stay the ‘which pension’ remedy issue which was due to be listed for hearing.[3]I heard his application at a preliminary hearing for the purposes of case management on the 3rd October 2017. I declined to interpret the FPJPS on the grounds that I could not do so in way which would bind the respondent as Mr Jack had conceded that, if his contention was correct, the FPJPS would give him a greater remedy than that to which he would be entitled under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) under which his and Mrs Barran’s claims have been brought. This Tribunal clearly has no jurisdiction to make an order for compensation or a declaration which exceeds its powers under the legislation under which a claim is brought. In any event it was not clear cut that the FPJPS had the effect for which Mr Jack contended but if it did it seems likely that it does so inadvertently and is also likely to be the subject of amending legislation.[4]I held that in consequence it could not be said that the ‘which pension’ remedy issue had become academic and if Mr Jack wished to pursue his contention that the FPJPS gave him a better remedy he would have to do so in another jurisdiction, presumably the Chancery Division of the High Court. Mr Jack then announced that he had decided to accept the respondent’s offer to settle his pension claim and would not be attending the ‘which pension’ remedy hearing. It is unclear whether he intends to take his contentions concerning FPJPS further.[5]Whatever the correct interpretation of the FPJPS may be and whether the effect it is said to have is intentional or inadvertent, it is clear that it is not capable of affecting the issue which was before me in Mrs Barran’s case namely whether her exclusion from the Judicial Pension Scheme during her service as a Vice-President of the Residential Property Tribunal Service was because of her part-time status and in consequence in breach of the PTWR. I held that part-time status was not the reason and her claim therefore failed. All that can be said about the FPJPS is that there appears to be a possibility that in its current iteration it might entitle her to the pension that my decision deprived her of, but it does so by a route which has no bearing on the correctness of my original decision (which was not appealed) and which is not open to Mrs Barran to follow in this Tribunal.[6]Her second ‘further’ reconsideration application, her third in total, is therefore refused on the grounds that it has no reasonable prospect of success.