Mr R Wagener v The Right Honourable M Gove MP and others: 2407553/2021 and 2401493/2022
EMPLOYMENT TRIBUNALS
Case No 2407553/2021, 2401493/2022
Between
Mr R WagenerClaimantThe Right Honourable M Gove MP and othersRespondent
Before
Judge Brian DoyleIn person for claimantMs Naomi Ling (instructed by Counsel) for respondentDate 23 August 2023
JUDGMENT
[1]The Tribunal considers that Mr Gove has apparently been wrongly included as a party (a respondent) to this claim. The Tribunal determines that he should be removed from the proceedings under rule 34 accordingly.[2]Acting under rule 34, the Tribunal orders that the Cabinet Office shall be joined as a respondent to the claim in substitution for Mr Gove.[3]The respondent’s present application to strike out the claim, whether under rule 34 or rule 37, is refused.
REASONS
[1]This is a preliminary hearing to consider two preliminary questions concerned with the correct respondent to a claim presented on 13 June 2021 [2-13], following Acas early conciliation between 28 May 2021 and 7 June 2021 [1]. An ET3 response to the claim is dated 14 July 2021 [14-25].[2]A case management hearing before Employment Judge Frazer on 5 October 2021 identified the preliminary questions as being:(1) whether The Right Honourable Michael Gove MP is the correct respondent and, if not, whether the claim against him should be struck out; and(2) if appropriate, to identify who the correct respondent(s) to the claim would otherwise be.[3]The Tribunal had before it an electronic bundle of documents comprising 244 pages, together with a separate index. References to the bundle appear in square brackets in these reasons. The Tribunal also had witness statements from Mr Robert Wagener, the claimant (11 pages); and, on behalf of the respondent, from Mr Michael Gove (2 pages) and Mr Colin Hennem (9 pages). It was agreed that the witness statements would be taken as read and that they did not need to be tested by cross-examination or questions. The witness statement of the claimant was treated as his written submissions. Counsel for the respondent, Ms Naomi Ling, presented written submissions, supported by various materials.[4]The hearing lasted just over 2 hours. The Tribunal reserved its judgment on the preliminary questions. It considered its decision “in chambers” during the rest of the sitting day and it wrote up its decision thereafter.
The claim
[5]The claimant was employed by Her Majesty’s Revenue and Customs (HMRC) from 3 October 1983 until his retirement on 30 April 2021. He has Type 1 Diabetes. He was also diagnosed with ME shortly before his retirement. The claimant was born on 30 April 1961. He retired at the age of 60.[6]That was earlier than he might have retired because he wanted to maximise the quality years of his retirement. As a result of that decision, he retired with a pension and lump sum calculated in accordance with his pensionable pay and reckonable years of service as at the date of retirement. Had he not retired when he did, he would have had additional reckonable years of service at a higher rate of pensionable pay, which would have increased his pension and lump sum payments. He would have benefited from a 3 year pay deal that would have increased his rate of pay.[7]The basis of his claim is that he had written to the relevant Minister, Mr Gove, in March and April 2021 requesting him to exercise his discretion under the Civil Service Pension Scheme rules to grant him additional years of pensionable service because there were special circumstances that justified the exercise of discretion. It does not appear that his request was determined.[8]The claim contains complaints of disability discrimination. The claimant confirmed that it did not contain complaints of age discrimination (although the relevant box for such a complaint had been ticked). It appears that, subject to any further particularisation that might be required, the claimant relies primarily upon sections 15 and 20-21 of the Equality Act 2010, by reference to section 61 of the Act. The response[9]The respondent’s initial response to the claim was that the claimant wrote to Mr Gove on 1 March 2021 and 30 April 2021. The Civil Service & Royal Mail Pensions Team in the Cabinet Office replied to the first letter on 17 March 2021, but it appears that the claimant did not receive that letter. The claimant's second letter dated 30 April 2021 was misdirected within Cabinet Office after it had been received, but a response for the claimant was being prepared at the time that the ET3 was being presented.[10]The respondent noted that the claimant has named The Right Honourable Michael Gove MP as the only respondent to the claim. It submitted that Mr Gove was not a valid respondent to the claim because the claimant does not have any cause of action against Mr Gove. The correct respondent, in place of any Minister who may exercise such discretion as may be involved, should be the Cabinet Office. The Tribunal was asked to amend the record accordingly. The respondent denied discrimination, whether on grounds of age or disability. The Cabinet Office’s position[11]The position of the Cabinet Office is set out in the witness statement of Mr Hennem. He is employed by the Cabinet Office as Pensions Technical Manager in the Pensions Policy, Strategy and Governance Team. He has been employed by the Civil Service since April 1986 and has been working in the pensions team since February 1997. He has been involved in most aspects of the Civil Service Pensions Scheme – including member’s benefits, reckonable service and pensionable earnings, risk benefits (ill-health and death benefits), transfers, additional voluntary contributions (including member-purchased added years/added pension), the Civil Service Injury Benefits Scheme and the Civil Service Compensation Scheme. For the last 7 years he has worked as a Pensions Technical Manager, primarily involved in the interpretation of the scheme rules/regulations for the scheme administrator, employers, and other stakeholders.[12]Rule 2.24 of the Principal Civil Service Pension Scheme Section II (The 1972 Section) (the PCSPS) provides for a discretion to be exercised whereby additional years may be added to a PCSPS member’s reckonable service, for the purposes of calculating their pension entitlement. The amount of added years that can be purchased by the employer under this Rule is limited to whatever added years would be required to bring the member's total reckonable service up to 40 years by the pension age. When added years are granted under this Rule, the amount of reckonable service will increase, but not the amount of pensionable earnings. Granting added years does not increase the final salary used in the calculation of pension benefits – only the years of reckonable service.[13]In a letter to Mr Wagener dated 17 March 2021 (it appears that this letter was not received by Mr Wagener and so it was re-sent on 21 July 2021) it was explained to him that rule 2.24 “gives the Minister discretion to grant a scheme member added years of reckonable service. However, it does not treat the member as if they had remained in service for that additional period of time. So, if the Minister were to grant you the additional period of reckonable service you have asked for, it would increase your reckonable service by this amount, but the pensionable earnings used to calculate your pension would still be based on your earnings up until your last day of service – i.e. they would not be based on what you would have earned if you had remained in service until 31 May 2022” [104].[14]Rule 2.24 has been a relatively little used rule. It was initially a tool that departments could use to aid recruitment. The original wording of Rule 2.24 [30] said that “the Civil Service Department” had discretion to grant additional years’ reckonable service, if there were special circumstances to justify it, but that “a decision to grant added years under this rule must be taken within 6 months of the date of entry into the Civil Service”.[15]An extract from the Joint Committee on Superannuation’s (“JCS”) 1972 report covered added years [31]. JCS was a sub-committee of the National Whitley Council – the main forum for negotiation between the “Official Side” (Civil Service management) and the “Staff Side” (the Civil Service trade unions). The JCS was set up to make recommendations for changes to the Civil Service pension arrangements in the early 1970s. Its report (known as the “Blue Book'”) informed the policy for what would become the PCSPS. The focus of the unions in 1972 was for the discretion to grant added years “at management's expense” for late joiners who could not accrue 40 years reckonable service before the pension age. At the time of this report that issue is said to remain “unresolved” (see paragraph 86 of the report) and the wording about decisions being taken about added years in the first 6 months’ of service was included in the original Rule 2.24.[16]This approach was again reflected in the guidance from the Pay and Conditions of Service Code. See paragraph 9028 at [32], which is based on the original wording of Rule 2.24. The Code (from 1981) described the discretion as being for the Treasury, reflecting a transfer of functions in the intervening period (those functions have since been transferred to the Minister for the Civil Service).[17]From the outset, the intention was that responsibility for the additional years sat with the department, and that it was originally a discretion that could be exercised only for new entrants into the Civil Service.[18]In 1995, a decision was taken to remove the requirement that the added years be granted within the member's first 6 months of service [39]. Correspondence between the Cabinet Office and the Treasury Solicitor’s Department dated 2 June 1995 discussed proposed amendments to the PCSPS rules. In relation to Rule 2.24 it was proposed that the 6 months’ time limit should be removed because “there are occasions where the appointment terms for key staff are renegotiated and it is considered appropriate that they should be granted added years, even though they first entered the Civil Service more than 6 months previously.” It also noted that the purpose of the rule is to “aid recruitment, or more accurately now, recruitment and retention”. It also noted that, although there is nothing on the face of the Rule itself to identify it as a recruitment and retention provision, it would be more appropriate to put that in the supporting Manual than in the Rules themselves, See the Manual [86]. The response from the Treasury Solicitor confirmed that “there is no objection to a discretion being exercised pursuant to general policy guidelines, so long as the application of those guidelines is not so rigid as to fetter the reality of the discretionary element” [49]. See the Principal Civil Service Pension Scheme (Amendment) Scheme 1995 (No. 2), which removed the 6 months’ time limit [57].[19]In practice, Rule 2.24 has been used by departments as a recruitment and retention tool. Each time the same process has been followed. The individual's employer submits a business case to the relevant team within the Cabinet Office – the Civil Service & Royal Mail Pensions (CSRMP) Team. It then considers whether the employer had demonstrated that the grant of added years is in the public interest (for example, it will enable the employer to recruit/retain an individual whose service is vital to the delivery of the Government's stated policies). If the team concludes that the employer has made a persuasive case, it then asks the Scheme Actuary (the Government Actuary's Department) to calculate the cost of purchasing the added years requested. If the employer is willing to meet the cost of the purchase, the team then approves the grant of added years. Although Rule 2.24 itself does not specify that the employer must meet the cost, it is a longstanding principle in the Civil Service that the organisation that seeks the implementation of a particular measure (for example, the granting of added years to a member of its staff) must meet the cost of that measure.[20]There are a handful of examples of this process happening in practice in the bundle at [69], [72] and [81]. In all of these cases, the decision in relation to whether to grant the request is made by officials in the Cabinet Office pensions team. At no point in any of these cases is the question referred personally to a Minister.[21]The question of Ministerial discretion is another point that was raised with the Treasury Solicitor in the correspondence in the bundle. At the point that there was a transfer of functions under the PCSPS from HM Treasury to the Minister for the Civil Service, the question was explicitly asked – “if we replace references from Treasury to the Minister for the Civil Service, how do we deal with individuals querying why the Minister has not personally dealt with their cases? Would we say something like ‘the Cabinet Office (OPSS) has exercised its discretion/made a determination on behalf of the Minister of the Civil Service’? It has been suggested here that the Carltona principle should be explained at the front of the published rules. What do you think?” [34]. The reply was that “if individuals query why the Minister has not personally dealt with their cases it would be appropriate to use the wording that you suggest, but I would not have thought it necessary to explain the Carltona principle at the front of the published rules” [35].[22]This was the explanation that was provided to Mr Wagener by the Cabinet Office in its letter dated 28 July 2021 [110]. In that letter it says “there is no formal delegation from Michael Gove to officials. The ‘Carltona principle’ which was established by the case of Carltona Ltd v Commissioners of Works (1943) confirms that the actions of civil servants are deemed to be the actions of the Government minister for whom those civil servants work.”[23]Mr Hennem is aware that Mr Wagener has challenged whether the Carltona principle does or should apply to his request, or to this rule of the PCSPS. In particular, Mr Wagener requested, by way of an FOI, information about the amount of time that Cabinet Office officials have spent attending to matters in the PCSPS rules that only mention the Minister by name. The Cabinet Office was not able to answer this question, because the amount of time spent by Cabinet Office officials attending to the PCSPS rules is not a metric that the Cabinet Office records or measures [138].[24]In Mr Hennem’s view, however, this does not mean though that there is no evidence whatsoever that it was logistically impossible for the Minister to deal personally with the number of matters in the PCSPS that are said to be the sole responsibility of the Minister, as Mr Wagener has stated at [122]. There are 273 references to the ‘Minister’ in the PCSPS. Most of them are solely to the Minister. Mr Hennem does not accept that, just because some references say - ‘or if the Minister so directs, to the scheme administrator’ – this means that in no other instance can the discretion or decision reserved to the Minister be delegated. The scheme administrator is MyCSP, and what this specific delegation means in practice is that there are certain delegations under the PCSPS that can be exercised by MyCSP, without Cabinet Office officials being involved[25]In terms of the logistics of the Minister dealing personally with matters under the PCSPS, there are two other sections to consider (the 2002 Section and the 2007 Section) and Alpha, which was introduced as the Civil Service Pension in 2015. These other pension arrangements also contain matters that are the responsibility of the Minister. In addition, the Minister’s responsibilities extend far beyond just the Civil Service Pension arrangements, and so decisions such as those made under Rule 2.24 of the PCSPS are just one element of the Minister’s role. To give a rough idea of the scale of the work involved in responding to queries about the PCSPS and other pension and compensation arrangements, according to figures published on gov.uk, as at 31 March 2021, the Civil Service headcount was 484,880 – the majority of these individuals participate in the Civil Service Pension arrangements. There are currently 65 people working on various aspects of the Civil Service pension and compensation arrangements. The vast majority of these people are full-time civil servants who spend the whole of their working time on Civil Service pension/compensation matters. This is a sizeable team undertaking a large volume of work. In Mr Hennem’s opinion, it would not be logistically possible for the Minister to deal with all of the requests personally.[26]The Scheme rules routinely refer to the Minister, but most operational matters are in practice normally dealt with by CSRMP on the Minister’s behalf. This extends to the exercise of discretions, unless they involve particularly novel or contentious issues, or financial consequences for the Scheme, in which case they would potentially be referred to the Cabinet Office Minister with responsibility for Civil Service Pensions and/or the Cabinet Office Permanent Secretary.
Conclusion
[27]Mr Wagener’s request has not yet been determined. HMRC will need to fund any request for a grant of additional years for Mr Wagener. CSRMP wrote to Mr Wagener on 17 March 2021 (although it appears that this letter was not received by Mr Wagener and so was resent on 21 July 2021) to explain to him that “added years granted under rule 2.24 are paid for by the member’s employer. As such the employer needs to submit a business case to the Minister asking him to grant added years in a particular case. If the Minister agrees to this, the scheme actuary (the Government Actuary’s Department) calculates the cost of those added years and they are only granted to the member in question once the employer pays the amount over to the scheme. If you still wish to pursue the added years route, you will need to take this up with your employer in the first instance” [104]. It is understood that Mr Wagener has now put his request to HMRC.[28]If a business case is received from HMRC, then the process for considering it will sit first with Cabinet Office officials in CSRMP. They will provide a consistency check, and they may make an initial decision that a business case does not meet the necessary criteria – for example, if the business case does not show how the recruitment/retention of the individual in question would be of benefit to the public – and that the discretion in Rule 2.24 should not be exercised. This decision would most likely not be referred to a Minister, although they may go back to the employing department with some comments, if they were minded to re-submit an amended business case.[29]However, if the employing department (HMRC for Mr Wagener) put in a convincing business case, and CSRMP was minded to approve it, then they might think it appropriate to refer this upwards for further consideration and approval. There are, however, a number of steps to go through before a Minister would be consulted, and the Minister would not normally be involved in an issue that affects just one individual and which has a negligible impact upon public finances (and where the cost would be met from another department’s budget). Any submission to a Minister is first cleared through the Government Chief People Officer and/or the Cabinet Office Permanent Secretary. It is possible that either the Chief People Officer or Permanent Secretary might sign off a request without referring it on to a Minister. Whether or not a matter will be referred to a Minister will depend on a number of considerations, such as the number of employees affected, and the impact on public finances. It may also depend, for example, on the level of interest taken by a particular Minister in a particular subject area, and the economic climate at the time.[30]Under the PCSPS “Minister” is defined as “the Minister for the Civil Service” (rule 1.13(g)). The Minister for the Civil Service is the Prime Minister. It is clearly not logistically possible for the Prime Minister to consider every individual request that is received in relation to the PCSPS and other Civil Service pension arrangements, and so responsibility for the PCSPS is delegated amongst Ministers. From February 2020 to September 2021, Mr Michael Gove was the senior minister of the Cabinet Office, which is the department where responsibility for the Civil Service pension arrangements sits. However, the Minister for the Cabinet Office delegates day-to-day responsibility for Civil Service pensions to one of the Cabinet Office’s junior ministers.[31]The decision in relation to Mr Wagener’s case would (or if a business case is received, will) not be referred to Mr Michael Gove personally, as he is no longer a Cabinet Office Minister. Nor would it have been referred to him had the request been determined before Mr Gove changed roles, in light of the delegated responsibility amongst Ministers set out above, and the delegated authority of Cabinet Office officials to consider a business case on behalf a Minister, and to determine whether a matter requires a further referral to a Minister, before a decision is made. Any decision in relation to Mr Wagener’s request, if it is referred to CSRMP in due course, will be taken by Cabinet Office officials, potentially with a referral to a Minister to give final approval to any recommendation, as there is no reason why his request could not be determined in accordance with the Carltona principle, on behalf of the Minister for the Civil Service. Mr Gove’s position[32]Mr Gove was not present at the preliminary hearing. He did not give live evidence. However, his position is clear from his witness statement. That position has not been directly challenged.[33]Mr Gove was appointed as Secretary of State for Levelling Up, Housing and Communities on 15 September 2021 and served until 6 July 2022. He was reappointed to that office from 25 October 2022 and he is also Minister for InterGovernmental Relations. He was previously Chancellor of the Duchy of Lancaster from July 2019 to September 2021. He was also Minister for the Cabinet Office from February 2020 to September 2021.[34]Prior to giving his statement, Mr Gove had not seen the two letters that Mr Wagener sent, addressed to him, dated 1 March 2021 and 30 April 2021, nor the two letters that were sent to Mr Wagener in response to those letters dated 17 March 2021 and 21 July 2021. He did not make any personal decision in relation to the request made by Mr Wagener in his letters of 1 March 2021 and 30 April 2021. The letters that were sent to Mr Wagener in response to his letters addressed to Mr Gove were written by members of the Civil Service and Royal Mail Pensions Team, within Cabinet Office, who have operational responsibility for the Civil Service Pensions arrangements. In Mr Gove’s opinion, it is entirely proper that Civil Service officials respond to letters such as these which may be addressed to an individual Minister. The Civil Service and Royal Mail Pensions Team are authorised to respond to operational queries regarding the Civil Service Pensions arrangements.[35]Mr Gove has no personal knowledge of the facts giving rise to Mr Wagener's claim, nor has he personally made any decisions in relation to Mr Wagener's case. He has authorised Cabinet Office officials, with operational responsibility for the Civil Service Pensions arrangements, to deal with this claim on his behalf. This is because he considers that he has no information to provide that is relevant to the case. Submissions on behalf of the respondent[36]The Tribunal had before it written submissions prepared by counsel for the respondent, Ms Naomi Ling, which were spoken to.[37]The claimant brings claims of age and disability discrimination arising out of his membership of the 1972 section of the Principal Civil Service Pension Scheme (PCSPS). He asserts that his pension on retirement should have been augmented to reflect the salary that he would have received had he remained in employment for two more years. He says that as a result of his disability, diabetes, he retired early at the end of April 2021 and that as a result of this he was unable to benefit from a 13.56% pay rise, retiring having had the benefit of an increase of only 2.75%. This negatively affected the value of his pension and lump sum on retirement.[38]The claimant has yet to fully particularise his claim, in particular identifying the provision, criterion or practice (PCP) required by section 20 of the Equality Act 2010. Additionally, it is not clear on what basis any claim for age discrimination may be brought. It appears that only section 20 (reasonable adjustments) is relied upon [8].[39]This preliminary hearing has been listed to determine:(1) Whether Michael Gove is the correct respondent and, if not, whether the claim against him should be struck out and(2) If appropriate, to identify who the correct respondent(s) to the claim would otherwise be.[40]Is Michael Gove the correct respondent?[41]The rules of the PCSPS (1972 Section) refer to a ‘minister’ who has powers and duties under the scheme. That Minister is the Minister for the Civil Service who has the power to make, maintain and administer schemes pursuant to the Superannuation Act 1972. Section 1(2) of the Superannuation Act gives the Minister the power to delegate to any other Minister or Officer of the Crown any functions exercisable by him by virtue of this section or any scheme made thereunder.[42]The Minister also has the power to delegate his duties to civil servants pursuant to the ‘Carltona’ principle. As for whether the Carltona principle should be considered to arise in a particular case, this depends on an open-ended examination of the following factors:(a) The framework of the legislation;(b) The language of pertinent provisions in the legislation; and(c) The importance of the subject matter (see R v Adams [2020] UKSC 19 at paragraph 26).[43]Under the provisions of the 1972 section of the PSCPS, there is express delegation to the ‘scheme administrator’. This is largely delegation of administrative functions, though there is further express permission to delegate some aspects of decision making and the exercise of discretion to the scheme administrator. Colin Hennem explained in his witness statement that the scheme administrator is a separate body known as MyCSP and it is submitted that the express reference to delegation to the scheme administrator is entirely consistent with the continued power to delegate to other officers of the Crown contained in section 1(2) of the Superannuation Act.[44]In any event, the question of delegation is not key to the question of whether a claim can proceed against the respondent personally. The duties contained within the PCSPS fall on the Minister for the Civil Service in his corporate capacity, which is as a corporation sole (see Ministers of the Crown Act 1975, section 6 and paragraph 5 of Schedule 1). The respondent’s actions as regards the claimant were performed in his capacity as Minister.[45]However, pursuant to section 17(3) of the Crown Proceedings Act 1947, all civil proceedings against the Crown are to be instituted against the appropriate authorised Government department. The appropriate department in this case would have been the Cabinet Office. Pursuant to section 205(6) of the Equality Act 2010, these provisions apply in relation to proceedings brought under that statute.[46]That is not to say that Ministers cannot be named in their personal capacity. However, the circumstances in which this may be done are only where the Minister has committed or authorised the commission of the wrong (M v Home Office [1994] 1 AC 377 at 408D, 408F and 409H). This position tallies with the position in relation to personal liability of individuals under the Equality Act 2010. An employer is liable under section 39 of the Equality Act, and the managers of a pension scheme under section 61. The liability of an employee or an agent under section 110 arises only where the individual does something that is a contravention of the Act. In this case it can be seen from the witness statements of Michael Gove and Colin Hennem that the respondent has had no involvement with the claimant’s case at all.[47]Should the claimant’s claim be struck out?[48]There is power to substitute one respondent for another pursuant to rule 34 of the Tribunal Rules of Procedure. However, the respondent requests that the claim is struck out in its entirety on the grounds that it does not have reasonable prospects of success, either against the Cabinet Office or on the underlying merits of the case in total.[49]In respect of the Cabinet Office, the question of whether to exercise its discretion has not yet been made pursuant to rule 2.24 of the 1972 Section of the PCSPS. The internal process adopted by the Cabinet Office is that, where an employer (in this case HMRC) wishes to pay for added years of reckonable service for a member, it needs to make a business case to the Scheme Manager. In this case, there has been no such business case made and therefore the discretion has not been exercised.[50]In relation to the nature of the claimant’s case, it is not usually the case that the Employment Tribunal will find that it is a reasonable adjustment to extend pay (for example, by increasing sick pay) for a disabled employee. The purpose of the disability discrimination legislation is to assist disabled persons to obtain employment and assist them into the workforce, rather than simply to put more money into the wage packet of the disabled person: O’Hanlon v Revenue and Customs Commissioners [2007] ICR 1359 at paragraph 68 of the EAT judgment, cited at paragraph 28 of the Court of Appeal judgment, and approved at paragraph 57 of the Court of Appeal judgment. In an extension of this reasoning, the EAT held in Mylott v Tameside NHS Trust UKEAT/0352/09/DM (paragraph 53) that the duty to make reasonable adjustments did not extend to enabling a disabled employee who was not able to work to leave employment on favourable terms. The claimant’s submissions[51]The claimant’s witness statement was effectively his written submissions, which the Tribunal treated as such, and to which he spoke.[52]The claimant submitted that, as Minister for the Civil Service, rule 2.24 of the Principal Civil Service Pension Scheme Rules 1972 (PCSPSR) [155] gave the respondent the discretionary power to grant the reasonable adjustments the claimant had sought in his ET1 [8].[53]As the respondent was responsible for the operation of rule 2.24 of the PCSPSR, the claimant argues he must also have been responsible for the guidance relating to this rule. This guidance [159], however, appears to limit the operation of rule 2.24 by reference to budgetary considerations (that is, the need for further employer contributions). The claimant also understands that it was this precondition that resulted in the failure to agree the reasonable adjustments he had sought. The claimant argues that this is contrary to the decision in the case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16 at paragraph 46 [213], which held that budgetary considerations were not in themselves ‘legitimate aims’ for the purposes of determining whether discrimination was legal.[54]The claimant contends that Michael Gove is a valid respondent, as he was a ‘responsible officer’ of the PCSPS, as the senior manager of the pension scheme (section 61(4)(a) of the Equality Act 2010) [167] and as a person who held relevant powers of appointment (section 61(4)(c)) [167]. The claimant contends that the respondent is also a valid respondent under the third-party rules in Schedule 8 to the Act because:(a) the respondent and others acted together as ‘principal and agent’ respectively (section 109) [169];(b) the respondent sanctioned ‘instructions’ [159] that led to illegal discrimination (section 111) [170, 171]; and(c) the respondent thereby assisted others in this discriminatory behaviour (section 112) [172].[55]The claimant says that it has been argued that the respondent is not a valid respondent because:(a) he has delegated his discretionary power to others; and(b) because he ceased to be the Minister for the Civil Service on 15 September 2021. The claimant argues that Michael Gove clearly held the ultimate discretion on this matter, as rule 2.24 has not been amended to delegate his powers to others. Given the wording of rule 2.24, the claimant further argues that it would be ultra vires for the respondent to completely divest himself of these discretionary powers, according to the most recent commentary on the Carltona principle in R v Adams [123-136]. The claimant also seeks to establish that the respondent should have exercised his discretion to grant the reasonable adjustments that the claimant sought. If the Tribunal holds that the respondent could and should have done this, then his successor would be duty bound to give effect to that finding. The fact the respondent was no longer the Minister for the Civil Service would be immaterial.[56]The claimant addressed “the facts” as he saw them. He was employed continuously by HMRC (previously the Inland Revenue) from 3 October 1983 to 30 April 2021, when he retired. He is currently unemployed.[57]On 1 March 2021, the claimant sent a letter to the respondent [99-101], asking him to exercise his discretion under rule 2.24 of the PSCPSR [155]. The Minister has discretion to grant added years of reckonable service to a civil servant if there are special circumstances to justify this. The number of added years which may be granted will be subject to the limits set out in rule 2.3 (limit on length of reckonable service). Subject to those limits, the Minister may determine whether the added years are to be treated as accruing evenly over the period from the date of entry into the Civil Service until the pension age or over such other period as the Minister may specify.[58]The claimant did not receive a reply from the respondent, despite his letter being sent by Recorded Delivery and being signed for at the respondent’s official address [102, 103]. The claimant therefore sent a further letter to the respondent on 30 April 2021 [105, 106]. This was also sent by Recorded Delivery and signed for at the respondent’s official address [107].[59]As the claimant had not received a reply to either letter, he approached ACAS as a prelude to possible action before the ET. Without the Tribunal exploring the contents of his discussion with Acas, the claimant understood the Cabinet Office’s position to be that the claimant had to approach HMRC first. The claimant’s position was that the Cabinet Office’s position made no sense as rule 2.24 PCSPSR clearly stated that responsibility for the decision lay solely with the Minister, who was identified by the PCSPSR as ‘the Minister for the Civil Service’ [153]. As a result, he presented an ET1 claim in due course.[60]So far as the legal principles engaged are concerned, the claimant submitted that section 61 of the Equality Act 2010 [167, 168] requires ‘responsible persons’ of occupational pension schemes (section 61(4)) to make reasonable adjustments (section 61(11)). The rules relating to reasonable adjustments are covered by section 20 [163,164].[61]Section 61(4) defines ‘responsible persons’ as follows:(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. In relation to section 61(4)(a), the PCSPSR refers in several places to ‘the Minister’ and then to ‘trustees or managers’, for example, at rule 6.17(ii) [157]. However, the word ‘manager’ is not a defined term in either the Equality Act or the PCSPSR. It must therefore be given its ordinary dictionary definition of a ‘person responsible for controlling or administering an organization or group of staff’ (page 1074, OED, Third Edition, 2010 [161]).[62]The claimant submitted that the Minister clearly acts as a de facto manager, controlling many of the activities of the pension scheme. In fact, ‘the Minister’ is referred to no fewer than 273 times in the PCSPSR, which also includes several references to the Minister directing the activities of the scheme administrator, for example, 4.69(iii) [156]. The Minister is also the ultimate arbiter of all questions relating to the interpretation of the pension scheme rules, per rule 1.14 [154].[63]As regards section 61(4)(c), the Minister has an appointing function, with responsibility for appointing both the Scheme Actuary and the Scheme Medical Adviser (1.13h and 1.13j) [153]. There is nothing in the PCSPSR to preclude either of these two office holders from also being ‘a member of the scheme’, the other pre-condition of section 61(4)(c).[64]Even if it were held that section 61 did not apply to the Minister, however, the claimant argues that one or more of the third-party rules would clearly be relevant. The provisions in Part 8 of the Equality Act 2010 allow discrimination claims to extend to various third parties.[65]Paragraph 358 of the Explanatory Notes to the Act [188] outlines that the overriding purpose of these sections is to ensure that both the person carrying out an unlawful act and any person on whose behalf he or she was acting can be held to account where appropriate. The claimant argues that even if the respondent were not a ‘responsible person’ of the PCSPS, he was still a person who clearly influenced, if not directed, the way in which the PCSPS operated.[66]In particular, the respondent has argued that the rule in 2.24 of the PCSPSR can only be invoked if an employer provides appropriate funding [159]. If this is correct, then the respondent has permitted the unfettered discretionary powers given to him by rule 2.24 to be administered by others in a way that limits the scope to make reasonable adjustments. If this is the case, then it means that perfectly justified ‘reasonable adjustment’ requests could be prevented by budgetary considerations alone, for example, if an employer decided not to pay the additional contributions. The claimant contends that this would amount to illegal discrimination, as the Supreme Court held in Seldon v Clarkson Wright and Jakes that ‘budgetary considerations ...could not in themselves constitute a legitimate aim…’ ([2012] UKSC 16, paragraph 46) [213].[67]The claimant argues that section 109 of the Act would apply to the respondent if he required, allowed or otherwise caused subordinate officers to operate rule 2.24 in the way that led to illegal discrimination under the Equality Act (see above). Section 109(2) says that anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.[68]Although section 41(5) defines what ‘principal’ means in the context of contract work, there is no general definition of either the word ‘principal’ or ‘agent’ in the Act within its definition section, Schedule 28 [184, 185]. In accordance with the normal rules of legal interpretation, therefore, those words in section 109 must be afforded their ordinary dictionary definitions, modified by reference to their contexts, where appropriate. The standard dictionary definitions of ‘agent’ and ‘principal’ are simply ‘a person who acts on behalf of another’ and ‘a person for whom another acts as an agent or representative’ (pages 31 and 1,411 of OED, Third Edition, 2010 [160, 162].[69]There is no requirement for this relationship to be the result of a formal agreement or understanding or even for the parties to be conscious that this is the nature of their relationship. This is confirmed by section 109(3), which states that, It does not matter whether that thing is done with the employer's or principal's knowledge or approval.[70]This reading of section 109(2) is confirmed by case law – in particular, the decisions in Kemeh v Ministry of Defence [2014] IRLR 377 and Heatons Transport v Transport and General Workers’ Union [1972] ICR 308, as expounded in the more recent decision of Unite the Union v Miss S Nailard, UKEAT/0300/15/BA [222-242]. In Unite the Union (paragraph 46) [230], it was held that that whilst regard must be had for the legal concept of agency, it was not essential that ‘the putative agent should have the authority to bind the principal contractually’. Furthermore, paragraph 58 of that decision [231] held that the principal cannot ‘avoid responsibility for acts done with his authority by merely saying to his agent: “Of course you must not do anything illegal” or (in the context of the Equality Act) “Of course you must not do anything against equality law”’.[71]The claimant therefore contends that in this case the respondent and the officers who managed and administered the PCSPS acted as de facto principal and agents respectively.[72]Turning to section 111(1), this provides that a person(a) (A) must not instruct another(b) (B) to do in relation to a third person(c) (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). Part 5 relates to work; section 108(1)/(2) relates to relations that have ended; and section 112(1) relates to aiding contraventions. The claimant contends that the respondent has contravened section 112(1) by tacitly endorsing official instructions (see above), which permit PCSPS Scheme Managers to apply rule 2.24 of the PCSPSR [155] in a restricted way that is conditional upon contributions from an employer, something which prevents the consideration of perfectly valid and justified reasonable adjustments requests, simply because the employer chooses not to do this.[73]The respondent’s only potential exemption from the operation of section 111 is section 111(7), which says that this section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. Given the respondent’s level of authority, however, he was clearly in a position to commit a ‘basic contravention’ in relation to PCSPS managers, trustees or administrators, for example, by ignoring their recommendations, overriding their decisions or by making pejorative observations about their work, for reasons, or in language, that would infringe the Equality Act.[74]The claimant next considered section 112 [172]. This provision relates to aiding another party to commit a ‘basic contravention’ (see above) under the Equality Act. For this section to apply, section 112(1) says that the person in question must ‘knowingly help another’ to commit such a contravention. However, the word ‘knowingly’ clearly does not require the perpetrator to be ‘certain’ that the act in question is a ‘basic contravention’, because section 112(2) exempts the perpetrator from culpability if they ‘reasonably rely’ on assurances from the other party that the actions in question do not constitute a basic contravention. In this case, those assurances might, for example, take the form of the Equality Act reviews undertaken by Ministers in accordance with section 149 [173, 174] (see Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017). The claimant argues that by enabling PCSPS managers to apply rule 2.24 in a way that allows reasonable adjustments to be refused solely for budgetary reasons, the respondent has ‘aided’ them in enhancing the probability of illegal discrimination (see above).[75]In conclusion, so far as the law is concerned, if it is held that the Minister of the Civil Service cannot ever be a valid respondent in relation to the PCSPS, as the ET3 attachment [23] appears to assert, then any decisions he took under rule 2.24 or any of the other 272 references to him in the PCSPSR, would be immune from action under the Equality Act, no matter how blatantly and deliberately discriminatory they were. The claimant contends that this is an untenable position in law, as it would amount to a legalised abuse of power. The claimant maintains that no individual, including a Minister, is exempt from the consequences of their acts of commission or omission where they lead to illegal discrimination under the Equality Act.[76]The claimant then took the Tribunal to the relevant regulations and relevant provisions of the PCSPR.[77]The claimant contends that he has requested adjustments to his pension arrangements under the discretionary powers contained within rule 2.24 [155] of the PCSPR. This states that these discretionary powers are exercisable by ‘the Minister’, and rule 1.13g [153] defines the term ‘Minister’ to mean, ‘the Minister for the Civil Service’. At the time the claimant lodged this claim, the position of Minister for the Civil Service had been delegated by the Prime Minister to The Right Honourable Michael Gove MP. He was therefore the appropriate respondent, unless it can be shown that:(a) he was legally prevented from being a respondent; or,(b) he had completely divested himself of those discretionary powers.[78]The claimant says that he has received no evidence in relation to (a). As regards (b), the respondent’s legal representative has referred to point 3.34 of the guidance for employers [159]. This indicates that some of the discretionary powers in rule 2.24 can be exercised by the Scheme Manager. This guidance, however, does not say that the Minister cannot also still exercise this discretionary power, or that he could not overrule the decision of the Scheme Manager if the Minister wished to do so. In addition, the powers granted to the Scheme Manager in relation to rule 2.24 are limited to cases where an employer wishes to provide added years for an employee and supplies a business case and the funding required to meet the additional costs.[79]Rule 2.24 PCSPCR, however, has not been amended and it refers solely to ‘the Minister’. The Minister must therefore have retained the ultimate decision-making powers, even if some of the day-to-day processing of certain types of claims has been delegated to others. Moreover, rule 2.24 is not confined to circumstances where an employer provides a business case and additional funding. Rule 2.24 gives the Minister an unfettered discretionary right to grant additional years and also the right to determine the period to which those added years are to be attributed. In the absence of any evidence to the contrary, therefore, The Right Honourable Michael Gove MP must have been the correct respondent at the time the current claim was submitted to the Employment Tribunal and at the time this claim was sent to him by the Tribunal.[80]Turning next to the Tribunal’s procedural rules, rule 1 of The Employment Tribunals Rules of Procedure 2013 [192] says that the term “respondent” means the person or persons against whom the claim is made. Here, the claim was made against The Right Honourable Michael Gove MP. Rule 34 of those rules [194] says that the Tribunal may ‘remove any party apparently wrongly included.’ No evidence has been provided to show that the respondent was wrongly included. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 do not provide any further guidance on how the term ‘apparently’ should be construed in the context of the rule mentioned above.[81]It might be argued, however, that whilst there was an initial prima facie justification for naming him as the respondent, this is not valid, because:(a) he has ‘apparently’ ceded his discretionary powers in rule 2.24 to the Scheme Manager (see above); and(b) he is no longer the Minister for the Civil Service, so he could not now agree to the adjustments being sought by the claimant.[82]In relation to (a), the claimant argues that it would be ultra vires for the Minister to completely divest himself of the discretionary powers given to him by rule 2.24 of the PCSPSR. The claimant therefore contends that this could not have happened in law. As regards (b), in relation to discrimination, redress can be sought under the Equality Act for:(i) past infringements under the Act; and/or(ii) in relation to discrimination that is ongoing. Here, the claimant seeks to establish that the respondent could and should have exercised his discretion in the past to grant the reasonable adjustments that the claimant sought. If the Tribunal found that the respondent could and should have done this, then the respondent’s successor and the Cabinet Office would be legally bound to give effect to that finding. The fact the respondent could no longer act personally in this matter would be immaterial.[83]Finally, the claimant took the Tribunal to the case law.[84]The respondent has argued that the Minister has effectively delegated his discretionary powers in rule 2.24 of the PCSPSR (see above), and that other junior officers could have acted on his behalf in accordance with the decision in the case of Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA). This decision held that the acts of government departmental officials are synonymous with the actions of the minister in charge of that department.[85]The Cabinet Office’s letter of 28 July 2021 [110, 111], however, says that no specific delegation has been made in relation to this matter. The claimant also does not agree that the Carltona principle applies to rule 2.24 of the PCSPSR and has drawn attention to the recent decision in the Supreme Court case of R v Adams [2020] UKSC 19 [123-136]. The claimant points out that whilst the Carltona principle allows actions of a department to be attributed to a minister, this principle does not apply automatically (paragraph 25, R v Adams) [132]. Furthermore, in deciding when the actions of a Minister can be undertaken by other members of his department, Lord Kerr held that three criteria needed to be applied, namely –(a) the seriousness of the matter or its consequences (paragraph 14) [129];(b) if it was logistically possible for the minister to undertake the duties (paragraph 18) [130]; and(c) whether there was any express/implied requirement in the relevant statute (paragraph 26) [133].[86]In relation to (a) above, it was held that Gerry Adams’s internment was a serious enough matter to warrant the Minister’s personal consideration, even though the impact of that decision was limited to one person and the outcome was largely ephemeral in nature. The refusal of the claimant’s ‘reasonable adjustment’ requests, however, would have a very significant effect on his income and that of his family for the rest of his life and also for the rest of his wife’s life, were he to predecease her. The claimant therefore contends that there is a respectable argument for saying that the claimant’s issues are of at least equal seriousness to the matters under consideration in R v Adams.[87]As regards (b) above, the claimant sought information from the Cabinet Office under the Freedom of Information Act to determine how much time had been devoted to issues in the PCSPSR that refer to action by ‘the Minister’ alone. The Cabinet Office’s reply of 24 September 2021 [138] confirmed that they held no information regarding this. There is therefore no evidence that it would have been logistically impossible for the Minister to personally attend to all of the issues in question. That would clearly depend on the frequency with which these issues arose.[88]Moreover, In the case of R v Adams, considerable weight was attached to the condition (c) above, which was clearly the decisive factor in that case. In reaching his decision, Lord Kerr pointed out that distinctions in the wording of the legislation clearly indicated that some actions had to be taken by the Minister, whilst others could be undertaken by the Minister or his junior colleagues.[89]Here, an identical situation exists in relation to the PCSPSR. These rules refer on several occasions to actions that can be undertaken by ‘the Minister or, if the Minister so directs, the scheme administrator’, for example, rule 4.71(iv) [156]. Elsewhere, however, and crucially within rule 2.24, the PCSPSR reserves the right of action to ‘the Minister’ alone. This clearly indicates that the wide-ranging discretion provided by rule 2.24 is held solely by the Minister and that he personally must have the final decision on issues relating to its application. The consequence of this is that it cannot be argued that the Minister no longer has any discretionary powers under rule 2.24. For this to happen, the claimant understands that the rules would have to have been changed by the agreement of Parliament, in accordance with the 1972 Superannuation Act that led to their creation. On 28 September 2021, the claimant requested evidence from the Cabinet Office under the Freedom of Information Act 2000 to support the reading of rule 2.24 provided by their guidance at 159. The Cabinet Office has not been able to find any such evidence [151, 152].
The relevant law
[90]The Tribunal has had regard to sections 15, 20-21, 39, 61, 108-112, 120, 126 and 205 of the Equality Act 2010; the Crown Proceedings Act 1947; the Superannuation Act 1972; and the Ministers of the Crown Act 1975.[91]It has also taken account of the case law authorities cited to it by both parties and in particular: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; In re M (M v Home Office) [1994] 1 AC 377; O’Hanlon v Revenue & Customs Commissioners [2007] ICR 1359; Tameside Hospital NHS Foundation Trust v Mylott (2011) EAT; Seldon v Clarkson Wright and Jakes [2012] UKSC 16; Unite the Union v Miss S Nailard, UKEAT/0300/15/BA; R v Adams [2020] UKSC 19. The Tribunal is alert to decisions decided under the Disability Discrimination Act 1995 and which pre-date the Equality Act 2010, not least any that pre-date section 15 of the later Act.[92]It has also considered rules 1, 2, 34, 35 and 37 of its procedural rules. The second claim[93]For completeness, the Tribunal also records here the claimant’s second claim arising from this matter and which was referred to during the hearing. This is Case Number 2401493/2022. This claim was presented on 22 February 2022. It names as respondent the claimant’s former employer, HMRC. It is a claim for age and disability discrimination. It refers back to the first claim, but it asserts that HMRC has prevented the Minister from making reasonable adjustments. A case management hearing is listed for 5 December 2022. It is not presently combined with this claim. Discussion and decision[94]The relevant rules of the PCSPS with which this claim is concerned are made under the powers contained in the Superannuation Act 1972. Superannuation schemes concerning civil servants are made under section 1(1) of the Act, which affords the relevant power to “the Minister”, which in turn means “the Minister for the Civil Service”. Section 1(2) provides that the Minister may, to such extent and subject to such conditions as he thinks fit, delegate to any other Minister or officer of the Crown any functions exercisable by him by virtue of section 1 or any scheme made thereunder.[95]The Carltona principle derives from the decision of the Court of Appeal in Carltona v Commissioner for Works [1943] 2 All ER 560. This may be summarised as being that the whole system of departmental organisation and administration is based on the constitutional notion that the decision of a government official was constitutionally that of his Minister, who alone was answerable to Parliament. The Court noted that public business could not be carried on if the responsible Minister had to personally consider every decision. The powers and duties of a Minister were normally exercised by responsible officials in his department. The Minister was obliged to ensure that important duties were taken by appropriately qualified officials, and he was answerable to Parliament if that were not the case.[96]The Carltona principle was revisited by the Supreme Court in 2020 in the case of R v Adams [2020] UKSC 19. The case was concerned with a Minister’s powers and duties in relation to detention without trial. The principle of the case may be summarised as being that the seriousness of the consequences of a decision was a consideration to be considered in deciding whether a power had to be exercised by a Minister personally. It was doubtful whether there was a presumption that the Carltona principle, allowing ministerial powers to be delegated, should apply to a power absent contrary statutory language. Even if there was a presumption, it was displaced in relation to the Secretary of State's power to make an interim custody order under the Detention of Terrorists (Northern Ireland) Order 1972. The statutory language was unambiguous, and the consequences of the decision were that an individual could be kept in custody, possibly indefinitely.[97]The Tribunal does not consider that the Carltona principle as finessed in Adams takes the present issue in the present case very much further. Section 1(2) of the Superannuation Act 1972 permits the delegation of functions to civil servants, and this would include the scheme administrators. Does any of this analysis assist us in deciding whether the claimant in the present case can proceed against the Minister personally? Here the Crown Proceedings Act 1947 and the Ministers of the Crown Act 1975 are relevant.[98]Section 6 of the Ministers of the Crown Act 1975 provides that Schedule 1 to the Act shall apply to any Minister eligible for a salary under the relevant provisions of the Ministerial and Other Salaries Act 1975. The provisions of Schedule 1 to the Act shall continue to apply to the Minister for the Civil Service, and (where appropriate) to his department. Schedule 1, paragraph 5 provides that the Minister shall for all purposes be a corporation sole, and shall have an official seal, which shall be authenticated by the signature of the Minister or of a secretary to the Minister or of any person authorised by the Minister to act in that behalf. A corporation sole is a holder of a public office, that office being treated as a legal entity in its own right, independently of the person who is the office-holder at any given time. As a result, powers and functions pass automatically from one officeholder to the next regardless of the identity of the human person who holds the office at any given time.[99]That means that it is neither appropriate nor necessary to bring Employment Tribunal proceedings against The Right Honourable Michael Gove MP in his personal capacity. The proper and orthodox position is that proceedings might be brought against the Minister for the Civil Service or, as the case might be, the Minister for the Cabinet Office in his corporate capacity rather than against Mr Gove (or the Prime Minister) in his personal capacity. In practice, as the Minister for the Civil Service is also the Prime Minister, who also in practice delegates his functions in relation to civil servants to the Minister for the Cabinet Office, relevant proceedings should be brought against the Minister for the Cabinet Office (as a corporation sole).[100]However, account also needs to be taken of the Crown Proceedings Act 1947. Section 17(3) of the Act provides that civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against the Attorney General. A list of the appropriate authorised Government departments is maintained under section 17(1). The Cabinet Office is the appropriate authorised Government department in the present claim.[101]In turn, section 205(6) of the Equality Act 2010 ensures that Employment Tribunal proceedings under the Equality Act 2010 are treated as civil proceedings for the purpose of section 17 of the Crown Proceedings Act 1947.[102]The result is that, all other things being equal, these proceedings should not have been instituted against Mr Gove in his personal capacity. They might have been commenced against the Minister for the Civil Service or, as the case might be, the Minister for the Cabinet Office in their corporate capacity, although as a matter of practice and procedure such proceedings would then be assumed by the Cabinet Office and the title of the proceedings amended accordingly.[103]However, are all other things equal? There might be circumstances in which it is conceivably appropriate that a Minister of the Crown could be sued in his personal capacity. Mr Gove’s personal liability in his capacity as an MP is one thing (for example, as an employer of the staff of his constituency office); his personal capacity in his role as a Minister of the Crown is quite another. It is that role with which we are concerned here.[104]The case of M v Home Office illustrates that, prior to the Crown Proceedings Act 1947 and subsequently, an action could be brought against a Minister of the Crown personally in respect of a tort committed or authorised by him, although he had been acting in his official capacity. A finding of contempt of court could be made against a government department or a Minister of the Crown in his official capacity, depending upon the body against which the order breached had been made. A finding of contempt could be made against a Minister personally where the contempt related to his own default, although normally any injunction would be granted against the Minister in his official capacity and where it was the department for which he was responsible that had been guilty of contempt.[105]However, this is not a case in which Mr Gove can be said to have committed a (statutory) tort or authorised the commission of one by others. It is apparent from the witness statement of Mr Hennem how the handling of pensions matters in the Cabinet Office worked. Mr Gove had little or no role in such matters, save potentially in the very limited and exceptional sense that Mr Hennem explained. Mr Gove’s own witness statement made it clear that he had played no part in any decisions taken or not taken regarding the claimant, Mr Wagener, and that he had been wholly unaware of Mr Wagener’s issue until these proceedings were brought to his attention. It cannot be said that Mr Gove exercised his ministerial discretion one way or the other, either positively or negatively. It might be said that he simply did not exercise a discretion at all, but that has been explained as arising from the fact that Mr Wagener’s application was not referred to him and it would not have been so, if at all, until a business case had been made by HMRC.[106]Mr Gove was not the claimant’s employer for the purposes of section 39 of the Equality Act 2010. He was not a responsible person for the purposes of section 61. He was not a trustee or manager of the Civil Service Pension Scheme. He was not an employer of employees who were or might be members of the scheme. He was not a person exercising an appointing function in relation to an office-holder who was or might be a member of the scheme. He was not an employer or principal for the purposes of section109. He was not himself an employee or agent for the purposes of section110. He cannot be said to have instructed, caused or induced a contravention of the Equality Act for the purposes of section111. He cannot be said to have aided such a contravention so that section 112 might apply.[107]Accordingly, the Tribunal concludes that Mr Gove is not appropriately a respondent or party to these proceedings.[108]Rule 34 of the Tribunal’s procedural rules provides that the Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and it may remove any party apparently wrongly included.[109]The Tribunal considers that Mr Gove has apparently been wrongly included as a party (a respondent) to this claim. Nothing is added to this rule by the inclusion of the word “apparently”. The Tribunal determines that he should be removed from the proceedings under rule 34 accordingly.[110]Should the Tribunal then use its rule 34 power to add the Cabinet Office by way of substitution? The respondent suggests to the Tribunal that it should not do so. Its position is that, as the claim is currently understood, it has no reasonable prospect of success. The result should be, in its submission, that the claim should be dismissed, whether as a result of the consequence of the decision under rule 34 or (by implication) under rule 37.[111]The Tribunal is reluctant to proceed under rule 37, at this juncture at least. That rule provides that, 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 on the ground that it has no reasonable prospect of success. A claim may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[112]Notice that a rule 37 application would be dealt with at this hearing was not given as part of the notice of hearing. It is correct that the claimant has had an opportunity at the hearing to deal with the suggestion that the claim should be struck out on its merits rather than the Cabinet Office be substituted for Mr Gove.[113]However, the Tribunal considers that the pleading of the claim is not yet concluded. Additional information (or further and better particulars) is sought so that the legal basis upon which it is said that the Cabinet Office is in breach of the Equality Act can be better understood. The respondent has presented no more than a holding response and it will have leave to amend its response in due course. There is also a second claim, now against the claimant’s employer (HMRC), which is intrinsically linked to the first claim. The factual matrix of the two claims is in large part identical. It is suggested that the claims should be consolidated (combined for hearing). Although the merits of the first claim do not immediately appear to be strong in the light of what is said in Mr Gove’s and Mr Hennem’s witness statements – without deciding the matter at this stage – it cannot be obviously said that it has no reasonable prospects of success. It would be better if the pleading stage were to be concluded and/or for the matter to be tested in evidence and in law at a final hearing.[114]For much the same reasoning, the Tribunal does not consider that it is in the interests of justice, or in accordance with the overriding objective, to achieve the same outcome via rule 34. In the Tribunal’s consideration, it appears that there are issues between the Cabinet Office and the claimant (and potentially HMRC, if the proceedings are combined) potentially falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings. The Tribunal is not yet in a position to do proper justice to the arguments made in paragraphs 14 and 15 of Ms Ling’s written submissions (or the wider challenges to the evidential or legal basis of the claimant’s claim).[115]In all the circumstances, the Tribunal determines that the claim should not be struck out. The Cabinet Office shall be joined as a respondent to the first claim in substitution for Mr Gove. The existing ET3 response, subject to future amendment, shall be treated as its response to the claim and accepted as such.[116]Case management orders shall be issued separately. Judge Brian Doyle DATE: 17 November 2022[117]The claimant was not disabled by reason of ME/CFS in 2020. December 2020, through his retirement date in April 2021, to June 2021[118]The claimant was still experiencing fatigue in January 2021 through to his retirement. He was recording his rest periods. He was working as normal and talking to his wife about his retirement and the financial implications of the pay deal on his pension in the two months prior to retirement. He was able to work as normal and carry on his home life. The respondent’s records continued to show him to be a good performer with no attendance issues. He was not absent and was performing well to the date of his retirement.[119]The diagnosis letter from his telephone clinic appointment in early April 2021 reported ME/CFS the claimant was reporting that his symptoms were having a significant effect on his work and home life. The Tribunal sees this report in the context of the claimant continuing to work, to not be off sick, to perform well, to be able to put together letters including a letter to the Minister about his pension and to be discussing the detail of his retirement intensively with his wife at that time. The Tribunal again notes the absence of evidence from the claimant in a disability impact statement (which referred only to his diabetes) or his witness statement or in oral evidence as to the effect of this condition on his day to day life at the time.[120]The Tribunal rejects the claimant’s assertion in his Skeleton Argument and closing submission that he told his line manager on or around 27 April 2021 before he retired that he had ME. The claimant had not raised this anywhere else. It was not in his letter writing at the time. His letter of 30 April 2021 refers only to his diabetes and reduced life expectancy as reasons for retirement. If the claimant had been so unwell that his Me/CFS symptoms were having a substantial adverse effect on his day to day activities then he could not have continued to work effectively, which he did.[121]The effects of his ME/CFS on his ability to carry out his normal day to day activities from December 2020 to his retirement on 30 April 2021 were not substantial.[122]In May 2021 the claimant contacted ACAS. In his Claim Form dated 13 June 2021 in case number 2407553-21 he makes no mention of ME/CFS. The Tribunal finds its effects on him were still not yet substantial. The claimant was not disabled by reason of ME/CFS in June 2021. September 2021[123]By September 2021 things had changed. The claimant was now very unwell on a daily basis. His oral evidence was that he was extremely fatigued, suffering nausea, headache and malaise that lasted up to two days after any exertion. In September 2021 he had a telephone consultation with his GP and reported debilitating fatigue. The Tribunal finds that by September 2021 the symptoms of his ME/CFS were having a substantial adverse effect on his ability to carry out his normal day to day activities. He was having to rest most of the time so that he could not do ordinary, everyday things with his family. The condition had then lasted, on the claimant’s report, from May 2020 and had worsened over time. His symptomatology was substantial by then and was likely to last at least a year from then. The Tribunal finds that the claimant was disabled by reason of ME/CFS from September 2021. Did the Respondent have knowledge of or could reasonably be expected to have knowledge of the Claimant’s ME/ CFS? HMRC’s knowledge[124]HMRC had no knowledge of ME/CFS until 12 October 2021 when the claimant wrote to Mrs Wallington.[125]The claimant had not raised his ME/CFS ill health as an issue at work during 2020 nor at all prior to his retirement on 30 April 2021. He had not requested occupational health referral and had not asked for any adjustments. He had been to the GP in December 2020 and told the GP he felt he had turned a corner. The Tribunal rejects his assertion that he told his line manager Mike Beard, shortly before his retirement that he had ME/CFS. The contemporaneous documentation; the claimant’s letter to Boris Johnson and letter to Michael Gove make no reference to ME. The respondent’s records show no significant sickness absence. The claimant was performing well.[126]Applying the guidance in the Code, there was nothing to suggest that HMRC ought reasonably to have known that he was disabled by reason of ME/CFS until his letter of 12 October 2021. The attendance and performance were good, there was no OH request, there was no communication of symptoms beyond those of diabetes to alert the respondent. CO’s knowledge[127]The Tribunal finds as a fact that CO did not know that the claimant had ME/CFS when it made its decision on 17 March 2021, which was not communicated to the claimant until 21 July 2021, not to exercise the discretion by the Minister at that time but to refer the claimant back in accordance with the guidance seek a business case and funding support from HMRC.[128]The CO made no further determination though its decision communicated on 21 July 2021 was a continuing act in the sense that the claimant, if he had achieved support from HMRC would and could have reverted to it for exercise of the discretion. It’s determination that the claimant had to get support endured throughout the period until 31 May 2022 when Ms Martin told the claimant that HMRC would not support him. CO became aware of the claimant’s ME/CFS at some point when Ms Martin shared her decision with Mr Hennem and Mr Spain at CO probably, though the Tribunal had no specific evidence on this point, in around December 2021 when the decision was made. The Tribunal finds that CO became aware of the claimant’s ME/CFS in December 2021. It made no further decisions, no further acts of discrimination were alleged against CO. Is the issue of knowledge separable between the two Respondents[129]CO and HMRC are not the same organisation or legal entity. HMRC knew of the claimant’s ME/CFS on 12 October 2021. CO knew of the ME/CFS in December 2021.[130]The Tribunal accepts the respondent submission that knowledge of HMRC is not to be imputed to CO and finds that even if it had been it would have made no difference (during the short period in which the Tribunal has found the claimant was disabled and HMRC knew that he was from October 2021 to the date when the CO knew that HMRC would not support the claimant December 2021) as the CO made no further determination during that period. The ball was in HMRC’s court at that time to decide whether or not to support the claimant.[131]If the Tribunal is wrong about the imputed knowledge point, then knowledge is not determinative because each of the discrimination complaints against CO fails below for other reasons. PART ONE the case against The Cabinet Office CO Section 21 Failure to reasonably adjust Did CO ("CO") apply the following provision criterion or practice ("PCP")? The refusal to apply "rule 2.24" other than by way of request made by an employer coupled with confirmation of financial support[132]CO applied a PCP which was to require those seeking exercise of the discretion under rule 2.24 of the Principal Civil Service Pension Scheme Rules (which gives the Minister the discretion to grant added years of reckonable service to a civil servant in special circumstances) to approach their employer and require the employer to make the request by way of submission of a business case with confirmation of financial support.[133]The Guidance provided that in the exceptional circumstances in which an employer, in this case HMRC, wishes to buy added years of reckonable service for a member then HMRC will need to make a business case to the Scheme Manager. If the Scheme Manager agrees the proposal they will also decide the cost of the added years.[134]The CO applied the PCP when it refused to apply the discretion itself without the business case and funding from HMRC. The Tribunal finds that his was a criterion applied in all cases and to the claimant. The Tribunal accepts the oral evidence of Mr Hennem that this criterion would have been applied to anyone disabled or non disabled asking for the exercise of that discretion. Did such PCP put C at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled (Tribunal’s wording in italics) C contends that the substantial disadvantage was that his disability/disabilities prevented him from remaining in employment through to 31 May 2023[135]There was a problem with the claimant’s drafting of his PCP; the substantial disadvantage did not flow from the operation of the PCP. This was put to the claimant at the outset of the hearing when the List of Issues was being discussed. The Tribunal said that the substantial disadvantage was problematic in the following way: the claimant was saying that because the CO made him go back to HMRC and get a business case and funding before the CO would consider exercising its discretion, he couldn’t stay in work to May 2023 to get the full pay deal. The Tribunal said that that did not reflect what it understood his case to be. The Tribunal understood his case to be that he wanted the Minister to exercise the discretion and not “bat him back” to HMRC for support and that because he had been “batted back” and HMRC had not supported him he could not get the discretion exercised by the Minister/CO and so had retired without added years which he wanted to compensate him for the pay deal not counting in his pension. This note was read back to the claimant and agreed. The claimant, confusingly, confirmed both that that was his case and that he was happy with the way he had drafted his claim.[136]The respondent objected to the Judge assisting the claimant to define his “substantial disadvantage” in a way that addressed the discrimination he alleged. The respondent said that the claimant was an experienced litigant, that he had had opportunity when drafting his claim form and again later at preliminary hearing for case management to reframe his PCP and substantial disadvantage and had chosen not to do so.[137]The Tribunal had regard to the Claim Forms and Response, to the Equal Treatment Bench Book and the obiter of Ms Justice Simler in Sheikholeslami regarding the “mischief” that a reasonable adjustment claim is intended to address and decided to support the claimant to precisely define his complaint so that his substantial disadvantage was having to go to HMRC for a business case and funding and then not getting their support so he did not get the added years. It was clear that the respondent had understood this to be his case and was not in any way disadvantaged by the support afforded to an albeit experienced litigant in person.[138]The Tribunal finds that the PCP (the decision of CO to “bat him back” to HRMC) did not put him at either his original drafted substantial disadvantage of not being able to work to 31 May 2023 nor the reframed disadvantage of his having to go to HMRC and not being awarded the added years and the consequent impact of that on his pension compared to non disabled people.[139]Simler J in Sheikholeslami set out that the focus of the Tribunal must be on whether what causes the disadvantage is the PCP. This part of the claimant’s case in section 20/21 was not made out. He did not say why he thought it was a disadvantage to him to be “batted back” compared to non disabled people who he accepted would also be “batted back”. The Tribunal finds that the CO decision to refer him to HMRC was based on the Guidance that says added years decisions under rule 2.24 are Reserved to the Scheme Manager and need support of the employer /HMRC in this case. The Tribunal accepted the evidence of Mr Hennem that the CO would apply the Guidance in any case. A non disabled person retiring in April 2021 and seeking added years would also have been batted back to HMRC and may also have been declined support and thereby denied the grant of added years.[140]The PCP did not cause any disadvantage to the claimant compared to a non disabled person and therefore no substantial disadvantage. The claimant failed to meet the first stage test on burden of proof in Section 136 Equality Act. The complaint must fail at this point. Did CO know, or could it reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage?[141]Even if disadvantage had been made out and it was not, the CO could not reasonably have been expected to know that complying with the Guidance to direct all applicants back to their employer for support and funding would be likely to disadvantage disabled persons generally or the claimant. What steps could have been taken to avoid the disadvantage? C contends that the reasonable adjustment would have been the application of "rule 2.24"[142]If the claimant had established disadvantage and knowledge of disadvantage his complaint would have failed on the reasonableness of the adjustment. Here again the claimant was assisted as a litigant in person to specify what the reasonable steps were beyond his stated “application of 2.24”.[143]The Tribunal assisted the claimant to clarify that the reasonable step would have been for(i) the Minister /CO to exercise the discretion itself in his favour without recourse to HMRC and(ii) to award the claimant what he would have had if he had been able to remain employed to 31 May 2023 but for it to be paid to him at the date by which he retired on 30 April 2021 (explained in evidence set out below by Mr Hennem in terms of pensionable salary and reckonable service). Was it reasonable for CO to have taken those steps?[144]His reasonable step (i) asks the CO to not follow the Guidance, that is to say not to require him, as any other applicant, to revert to the employer and have the employer submit a business case and funding. The claimant seeks something extraordinary and outwith the Scheme Rules and Guidance. The Tribunal finds that would not have been a reasonable step. It accepts Mr Hennem’s evidence that the CO must apply a transparent set of rules in the exercise of decision making for providing benefits under the scheme, that those rules must have clear criteria for eligibility and that the CO does not and should not have a general discretion to make payments in individual circumstances. That would not have been a reasonable step.[145]In relation to reasonable step (ii) the award of the added years, the claimant submitted that he was a long serving civil servant, that he had Type 1 diabetes and had served through years of pay freeze. The Tribunal considered the response that Ms Cureton for the CO sent to his request letter on 21 July 2021 which set out that it could not grant what he was seeking. This was further explained by Mr Hennem and accepted by the Tribunal in oral evidence as follows. The grant of added years by an employer under rule 2.24 is discretionary. The amount that can be purchased is limited to whatever added years would bring reckonable service up to 40 years by pension age. The calculation is 1 /80th x pensionable earnings x reckonable service. When added years are granted the reckonable service increases but not the pensionable earnings. If for example someone had 38 years of reckonable service at £ 50 000 final salary then an employer may apply to purchase an added 2 years for him so that his pension would be 1/80th x £ 50 000 x 40 - £ 25 000 instead of 1/80th x £ 50 000 x 38 = £ 23 750.[146]The claimant wanted what he said was the amount that he would have had if he had worked on until 31 May 2023 to achieve the full pay deal, or an amount to compensate for that as he could not work to 31 May 2023. He wanted, in effect, a sum to be done to reflect the salary he would have had at 31 May 2023 x 1/80 x 40 (or 43, he was not consistent on this point). He wanted that amount as at his retirement date of 31 April 2021. He wanted enhancement to both his reckonable service and pensionable earnings, or added years of reckonable service to put him in the position he would have been in for pension if he had had his 31 May 2023 salary at 30 April 2020. This was firstly not something the Scheme allowed and secondly Mr Hennem said would have given the claimant something that a non disabled person retiring on that date would not have been entitled to.[147]Ms Cureton’s letter had explained that added years would not increase the pensionable earnings but the claimant persisted in seeking the amount of earnings he would have had if he had remained in service to 31 May 2023. His thinking was that the pay deal, being paid out over three years from 1 June 2020, was to compensate him for the pay freeze period, so that it was money that morally he felt he had earned. In this regard, the members wished this judgment to record that they can understand why he held this view and had been aggrieved about the pay freeze but they wished to record that the claimant could have remained employed to 31 May 2023. He had not informed his employer of his ME/CFS, had made no request for a referral to OH nor any reasonable adjustment to enable him to remain in work to 31 May 2023. The Tribunal found that it was his decision to retire when he did that denied him the pay award and not any failure to reasonably adjust by the employer.[148]The Tribunal accepts the respondent’s submission that a reasonable adjustment is one that supports a disabled person to remain in work. What the claimant was seeking was to retire on enhanced terms.[149]Addressing the respondent’s submissions; Tameside v Mylott referred to by the respondent was a case that relied on London Borough of Lewisham v Malcolm [2008] IRLR 700 and was decided under the provisions of the Disability Discrimination Act 1995. The O Hanlon case referred to by the respondent was a failure to reasonably adjust case that went to the Court of Appeal on the point as to whether or not it was discriminatory to fail to adjust the rules of the sick pay scheme to allow the claimant more sick pay than she would otherwise have been entitled to under the scheme and more than a non-disabled person would have been entitled to. The Court of Appeal found that it would be invidious for an employer to have to determine whether to increase sick payments ….by assessing the financial hardship suffered by the employee or the stress as a result of the lack of money which could equally be felt by a non disabled person absent for a similar period.[150]The Tribunal finds that the request for (i) direct decision by the Minister and (ii), the added years to put the claimant in the position in relation to pensionable earnings he would have been in as at 31 May 2023 on 30 April 2021 would not, if he had succeeded in establishing disadvantage, have been a reasonable step because he was not continuing in work and because it would have put him in a position of betterment over other people with a disability other than his retiring at that time.[151]The claimant’s complaint of failure to reasonably adjust against CO fails. Did CO treat C unfavourably by requiring him to remain in employment through to 31 May 2023 in order to benefit in terms of his pension entitlement from the pay increase made in 2021?[152]The CO knew at the time it made its decision that the claimant was a Type 1 diabetic and ought reasonably to have known this made him a disabled person. Was there unfavourable treatment ? What caused it ? Did it arise in consequence of disability ? No unfavourable treatment[153]The Tribunal finds that the CO did not require the claimant to remain in employment through to May 2023 to get the pay deal. There was no unfavourable treatment within section 15 on the claimant’s case as pleaded by him. The pay deal was agreed between the employer HRMC and the unions. The claimant was offered an opportunity at the outset of the case to redefine his unfavourable treatment and was adamant that he did not want to do so. The claimant failed to meet the first stage burden of proof test. There was no evidence that could realistically suggest that there was discrimination in the section 15 complaint by CO. His complaint must fail at this point.[154]Even if the claimant had established unfavourable treatment, for example if his complaint had been drafted so that the Minister’s refusal to exercise the discretion himself and the “batting back” were the unfavourable treatment (the same things complained of in the failure to reasonably adjust complaint) the Section 15 complaint would have failed on this point as the Tribunal would have found that the claimant had an unjustified sense of grievance, applying Shamoon, in complaining about treatment that was in effect the proper operation of the Scheme Rules and Guidance. Even in this scenario the claimant would not have discharged his burden of proof. There was no evidence to show a link between the unfavourable treatment, “the batting back” and disability.[155]Even if the claimant had succeeded in establishing unfavourable treatment, on his case as drafted or as reframed for him, his complaint would have failed on causation. Applying Pnaiser, The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case[156]The Tribunal finds that what caused the Minister to refuse to exercise the discretion at that point and the CO to refer the claimant back to HMRC for support was its application of the Guidance to the Scheme. The Tribunal accepts the evidence of Mr Hennem and Ms Martin that this was the route, rarely used, only three cases since 2000, but this was the route for an application for the Minister / CO to exercise its discretion. The conscious thought process was to apply the Rules and Guidance. This applied more broadly even than for HMRC employees, it applied to anyone in the Civil Service Pension Scheme wanting exercise of the discretion in the Scheme Rules. Each of them had to get the support and funding from their own department. It had nothing at all to do with any characteristics of the claimant.[157]The claimant said that the something arising out of his disability was his disability/disabilities prevented him from remaining in employment The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. The respondent did not, on the claimant’s stated case, require him to work to May 2023 (at all) nor on the case as reenvisaged for him by the Tribunal in this judgment bat him back to HMRC because he could not remain in employment to 31 May 2023. It batted him back because it complied with the Rules and Guidance. The compliance with the Rules and Guidance did not arise in consequence of the claimant’s disability. The Tribunal acknowledges that for the “in consequence test” to be satisfied, the connection can be a relatively loose one.” The connection here is not made out at all.[158]Even if the CO had either required him to work on or batted him back because he could not remain in employment (none of which is accepted) the Tribunal rejects his assertion that he could not work on to 2023 by reason of his diabetes. His diabetes did not prevent him working on. His reduced life expectancy did not prevent him working on. The date of his decision to retire and therefore the impact of the pay award on his pension did not arise in consequence of his disability.[159]The claimant’s case, to address his thinking rather than the application of the law above, is that his decision to retire arose in consequence of his not being able to work on because of his ill health / diabetes. The Tribunal rejects that the claimant was too unwell to work because of his ME symptomatology at the point of his retirement in April 2021. He was not disabled by reason of ME/CFS at the date of the decision in July 2021 to bat him back. He was not too unwell because of diabetes to work at April 2021. He had had good attendance and performance that year and no significant absence the year before.[160]The Tribunal finds that the claimant’s decision to retire was, for him, a financial one which arose in turn out of his beliefs about his life expectancy. Those beliefs about life expectancy do not in consequence of his disability. The expert in 2012 to whom he sent his life expectancy report said it is not possible to reach a conclusion about life expectancy in an individual case of Type 1 diabetes. The data the claimant relied on was old. He had not revised his view since 2012. He had not factored in his own good health, good blood management and recent research. He had not factored in that he was age 60 and that life expectancy may differ having already reached 60.[161]There may be other Type 1 diabetics who did not share his beliefs on life expectancy and did not decide to retire because either they did not share his beliefs on life expectancy or, sharing them decided instead to work to maximise income during lifetime and to remain eligible for death in service benefit for his family. Others may have chosen to take ill-health retirement. The claimant told the Tribunal he had done those sums, he had considered early ill health retirement and had considered working on part time during the payment period of the pay deal but neither of those options which he had costed was sufficiently beneficial to dissuade him from his decision to retire. He might well have made the same decision after almost 38 years service to retire on his sixtieth birthday even if he had not been disabled by reason of Type 1 diabetes. None of the factors in this paragraph, what he or others might have done, would defeat his section 15 complaint if a connection had been made out but what his evidence on having done the sums, and having spent the best part of two months prior to April 2021 discussing options with his wife, showed the Tribunal was that it was not his health that prevented him working on.[162]The complaint having failed it has not been necessary to consider whether or not any treatment complained of was a proportionate means of achieving a legitimate aim. There was little focus on this part of the case in cross examination or in submission. If it had been necessary to decide this point then the Tribunal would have found that each of the respondent’s stated aims were legitimate and that it would not be proportionate to grant what amounted to betterment to a scheme member with diabetes who had chosen to retire at age 60. To do so would favour disabled scheme members retiring during the payment period of the pay deal over non disabled who might equally have worked during the pay freeze period, and to favour those with diabetes over non diabetics, or even those who believe themselves to have a reduced life expectancy, whether related to disability or not, over those who do not have that belief about their life expectancy. The Tribunal members felt that the claimant was seeking recompense for pay he felt he had earned during the pay freeze and was aggrieved that he could not have that benefit he felt he had earned AND retire at the date he had always planned to retire. To award him that would be disproportionate to the respondent’s legitimate aims at (2) (3) (4) and (5). The section 15 complaint against CO, if it had not failed above would have been objectively justified. Time points against the CO Are there any alleged breaches of duty occurring on and/or prior to 28 February 2021 and, if so, are they prima facie out of time?[163]The complaints against the CO all relate to the decision made on or around 17 March 2021 but not communicated to the claimant on 21 July 2021. The claimant went to ACAS on 28 May 2021 and achieved his Certificate on 7 June 2021 and commenced proceedings on 13 June 2021. His complaint against the CO is in time. Time points against HMRC[164]The List of issues did not raise any time points in the complaints against HMRC. The decision not to support the claimant was made in December 2021 but not communicated to him in writing until 31 May 202. The claimant had been to ACAS and brought his complaint on 22 February 2022. PART TWO the case against HMRC Failure to Make Reasonable Adjustments (Sections 20 and 21 Equality Act 2010 ("EqA") Did the Second Respondent ("HMRC") apply the following PCP? the application of "rule 3.4" with specific reference to the interpretation of "exceptional circumstances"[165]The claimant refers to Section 3.4 of the Guidance not any “rule” 3.4. This was the Scheme Flexibilities guidance that provided that in exceptional circumstances in which HMRC wants to buy added years of reckonable service for a member they do that by providing a business case and funding commitment to the Scheme Manager, for onward approval by CO.[166]The claimant’s complaint was that the respondent should have adjusted what it considered to be “exceptional circumstances” to fit his case.[167]Ms Martin conducted the review and considered whether or not exceptional circumstances existed in the claimant’s case. HMRC, through Ms Martin, applied the exceptional circumstances criterion to the claimant. Did such PCP put C at a substantial disadvantage in relation to a relevant matter compared to persons who are not disabled[168]The claimant said that the substantial disadvantage was that his disability/disabilities prevented him from remaining in employment[169]As in his complaint against CO set out above the claimant had difficulty in the way he had defined his substantial disadvantage. The Tribunal explained that on his own case the substantial disadvantage of not remaining in employment to 31 May 2023 does not flow from the operation of the PCP without the addition of some extra words to the effect and thereby stopped him getting the benefit of the pay deal in his pension.[170]The Tribunal supported him to reframe his substantial disadvantage so that it was being denied the business case and funding support and therefore the award of added years by the CO. Again, in this way the substantial disadvantage addressed the “mischief” if any of the PCP. The respondent made no objection. Did the PCP put the claimant at a substantial disadvantage compared to a non disabled person ?[171]Ms Martin made the decision on “exceptional circumstances”. She set out her reasoning in her May 2022 letter. The Tribunal heard and accepted the following oral evidence from her. She explained that she had taken into account the following factors; the claimant was long serving, he had retired at a date that meant he was not in service during the second and third years of pay deal. She did some research, consulting with colleagues including Mr Spain, Head of Pensions Policy and Technical Team at the CO who was the Scheme Adminstrator and found that clause allowing for the purchase of added years by the employer had rarely been used. Where it had been used, in three cases since 2002, it related to recruitment. Ms Martin was able to tell the Tribunal of the three specific cases (and contemporaneous documentation relating to those cases was presented in the bundle) so that she was credible on the point of both her research and the use of the “exceptional circumstance” provision. Ms Martin took into account that if HMRC supported the claimant it would put the claimant in a better position than others, disabled and not disabled whether with diabetes or otherwise who retired during the first year of the three year pay deal. She considered it would have broad implications for anyone retiring during the pay deal. She accepted that the claimant was disabled by reason of his diabetes and that he had ME/CFS. She took those conditions into account. She considered that the existence of disability / medical condition of itself did not amount to an exceptional circumstances. She considered that his decision to retire ten months into a three year payment period of a pay deal did not amount to an exceptional circumstance. She considered that around 13 per cent of HMRC’s workforce were disabled in March 2021. She thought about whether or not the claimant had made applications for voluntary early retirement on health grounds and found he had not. Ms Martin then obtained information about the claimant’s pension. He had 37 years and 210 days as at his retirement date. His pensionable earnings were £ 64516 when he had retired so that his pension, after lump sum, was £ 28,801.[172]Ms Martin calculated what his pension would have been if he had used the pay rate for 1 June 2022 for 2023, that is the final year of the pay deal. His pension would have been £ 31 988. She called this Option 1. Option 2 was extending reckonable service to 31 May 2023 and using his May 2023 salary too. This would have been a pension of £ 33 847. In both options there were increases to his lump sum too. In this way, although the claimant had not specified these figures, Ms Martin was aware of the substantial disadvantage to the claimant. It was the difference between his £ 28,801 pension and £ 33,847 (having made adjustments to reflect the enhanced lump sum the claimant took)[173]Mr Spain then calculated the estimated cost for HMRC to fund those options. For option 1 it was £ 75,914 and for Option 2 £ 120,196. Mr Spain provided links to the Guidance and to the Pension Manual. Ms Martin took into account the only medical report provided by the claimant which was dated 7 April 2024 and confirmed the ME/CFS diagnosis. She spoke to the claimant’s Deputy Director Matt Blake who confirmed that the claimant worked full time and he had reasonable adjustments in place for diabetes including breaks and disability leave. She knew that the claimant had not taken any disability leave. She took into account the claimant’s evidence on life expectancy. She did not accept that he had been forced by his health to retire when he did.[174]Ms Martin wrote a Case Review document which outlined her reasons for not supporting the claimant’s request. She did not consider that his circumstances met the special circumstances test the CO would need to apply because there had only been three cases since 2000 and they had all been recruitment related. She took into account in her determination that he could need meet the CO special circumstances test that he would not be continuing in work, he had already retired. It was her view that reasonable adjustments are to support people to remain in work who otherwise could not do so. She also considered that he could have worked on to 31 May 2023 or bought the added years himself. Those were options open to him.[175]Ms Martin was concerned not to set a precedent. Supporting the claimant would mean that he would retire with a financial advantage over non-disabled members. She was concerned supporting him could have implications not just for HMRC but for other public sector employers whose staff retired during the pay period of an agreed pay deal. Ms Martin had regard to Managing Public Money a guidance document which said that Treasury consent should be obtained before entering transactions which set precedents, she thought this was such a transaction. She noted guidance that said the purchase would need to be in the public interest, made objectively and without favouritism. She considered that supporting the claimant would favour him over other disabled and non disabled people retiring during the payment period. She did not feel she could argue it was in the public interest to support the claimant. She could not conclude that the claimant’s case met the exceptional circumstances test.[176]Her decision not to support the claimant was detrimental to him. There was disadvantage in the ordinary sense of the word. For him to succeed in his failure to reasonably adjust complaint though he must show that her decision put him at a substantial disadvantage compared to people who are not disabled.[177]The Tribunal finds that the operation of the PCP did not put the claimant at the substantial disadvantage either as originally pleaded or as reframed when compared with non disabled people. The Tribunal found anyone who was not supported with a business case and funding whether disabled or not would suffer the same disadvantage of not getting the added years. The burden of proof does not lie with C but he contends that the reasonable adjustment would have been submitting a "business case" and/or providing appropriate financial support in support of his application under "rule 2.24"[178]The Tribunal finds it would not be a reasonable step to expect HMRC to support a case that it did not consider exceptional or adjust what it considered exceptional to be to meet the circumstances of the claimant.[179]Whilst cost was taken into account the Tribunal finds that the cost was not Ms Martin’s reason for failing to support the claimant. She was concerned not to create a precedent within HMRC that exceptional circumstances included a decision to retire and concerned not to expose not just HMRC but potentially the CSP Scheme to a precedent being set which would apply to scheme members.[180]In the section 20/21 complaint against HMRC the first stage burden of proof was met. The claimant established facts, that the discretion was not exercised in his favour, that could realistically have amounted to discrimination if his disability had been part of that decision making. It was necessary for the Tribunal to move to the second stage and consider the respondent’s reason for failing to exercise its discretion in his favour. The burden of proof was reversed and HMRC was able to show as set out above a non discriminatory reason for its failure to exercise the discretion in his favour. Did HMRC treat C unfavourably by failing to submit a "business case" and/or provide appropriate financial support in support of his application under "rule 2.24"?[181]HMRC knew at the time it made its decision that the claimant was a Type 1 diabetic and ought reasonably to have known this made him a disabled person. HMRC knew from 12 October 2021 that the claimant had ME/CFS and ought reasonably to have known that this made him a disabled person.[182]Was there unfavourable treatment ? What caused it ? Did it arise in consequence of disability ? Unfavourable treatment[183]The decision not to support the claimant amounts to unfavourable treatment. It was generally to his detriment as he was denied the chance of the exercise of the discretion to award him added years by the CO. The first stage burden of proof test was met and the burden shifted to the respondent. If so, was this because of something arising in consequence of any disability? - C contends that his disability/disabilities prevented him from remaining in employment through to 31 May 2023[184]Again, as with the complaint against CO the drafting of the “something” was problematic. The HMRC decision not to support the claimant was not because of something arising in consequence of his disability. The paramount factor for Ms Martin was that she did not see retirement as an exceptional circumstance.[185]The something that the claimant pleaded, not being able to work through to 31 May 2023, did not arise in consequence of his disability. The reasoning in relation to the Section 15 complaint against CO on the “something” point applies equally here.[186]The claimant has not established in relation to either diabetes or ME/CFS that he could not have worked on to 31 May 2023. He had good attendance and performance, he had not told HMRC about his ME/CFS until after his retirement. He had not asked for OH referral or any reasonable adjustments to accommodate any emerging symptoms of ME/CFS in April 2021. He told the Tribunal that he had done the sums and worked out what his financial position would be if he applied for early ill health retirement and if he worked on to 31 May 2023 on a part time basis. That showed that he was not credible in saying that his ME/CFS prevented him from working beyond the retirement date he had planned. He had thought about, and costed, doing just that. His decision making was financial and did not arise out of an inability to work for either or both diabetes or ME/CFS reasons. He was undoubtedly unwell and had his diagnosis of ME/CFS on 1 April 2021 by telephone consultation but the claimant worked in April and did not, the Tribunal found, tell his managers that he was too unwell to work. He took no sick leave and there were no performance issues.[187]The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. Neither his ill health nor alleged inability to work on to the end of the payment period on 31 May 2023 caused Ms Martin not to support him, not to consider his case an exceptional circumstance.[188]The complaint having failed it has not been necessary to consider whether or not denying support was a proportionate means of achieving a legitimate aim. There was little focus on this part of the case in cross examination or in submission. If it had been necessary to decide this point then the Tribunal would have found that aim (2) and (3), (4) and (5) were legitimate aims. Aim (1) in so far as it related to not putting forward a business case that did not amount to “special circumstances” for the purposes of the Scheme Rules and Guidance was not a legitimate aim of HMRC. The Tribunal would have found that it was legitimate for HMRC to have an aim of applying the “exceptional circumstances” test itself in deciding whether or not to support an applicant for added years but it was not legitimate for HMRC to apply the test that was a matter for the exercise of the discretion by the CO delegated from the Minister. The “special circumstances” test could be something that HMRC had regard to as a relevant factor in whether or not to consider the claimant an exceptional circumstance, it might consider its view of his prospects of achieving the added years from CO, but it was not a legitimate aim for HMRC to apply the CO test itself and not support those who it thought would not meet the CO test. In fact, Ms Martin did not do that but the aim itself would not have been legitimate if this point had had to be decided.[189]In relation to legitimate aims (2), (3),(4) and (5) denying support for the claimant as an exceptional circumstance case, and failing to commit to funding would have been a proportionate means of achieving those aims. The section 15 complaint against HMRC, if it had not failed above would have been objectively justified in relation to those aims. Indirect Discrimination Did HMRC apply the following PCP? the application of "rule 3.4" with specific reference to the interpretation of "exceptional circumstances"[190]The respondent applied the guidance in Section 3.4 of the Scheme Flexibilities document which required that an applicant have the support of the employer in an application for added years. The test for HMRC to decide whether or not to offer that support was “exceptional circumstances”[191]Was it a provision, criterion or practice ? The Tribunal concludes in this case, based on the evidence of Ms Martin, that it was both a criterion, that the claimant must have the support of the second respondent by way of a business case and commitment to funding before the Minister would consider exercise of the discretion, and a practice, to require those seeking the exercise of the discretion by the Minister, to follow that route. It was also both a criterion and a practice (though there had only been 3 cases since 2000 but it was likely that it would be applied again in the same way in future) to interpret “exceptional circumstances”.[192]HMRC applied the PCP to persons with whom the claimant did not share the characteristic, it applied to those with and without Type 1 diabetes ME/CFS. Anyone seeking added years under 2.24 needed HRMC support and funding which was only granted in exceptional circumstances. Ms Martin applied the PCP to the claimant and to others. Did or would the application of such PCP put (disabled people) persons with whom B shares the characteristic ie Type 1 Diabetes at a particular disadvantage when compared with people (who are not disabled) persons with whom he does not share it.[193]The List of issues wrongly stated the language of the statute. The comparator group is not “disabled people”. Section 6(3)(b) Equality Act 2010 says that a reference to persons who share a protected characteristic is a reference to persons who have the same disability. The law is applied to ask did the PCP put people with Type 1 Diabetes ME/CFS at a particular disadvantage when compared with people who do not have Type 1 Diabetes ME/CFS. Further, Section 23 Equality Act 2010 requires that for the purposes of Section 19 there must be no material difference in circumstances. The parties accepted that this was the Tribunal’s understanding of the correct application of the law at the outset of the hearing.[194]The next step is to address section 19 (2)(b) which tests whether the PCP put or would put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom he does not share it. A comparator group or pool can be formulated. In applying sections 19, 6(3)(b) and 23 the Tribunal formulated the following comparator group of those who do not share the claimant’s disability: Pool A HMRC employees who have a disability other than Type 1 diabetes and ME/CFS and who are retiring between 1 June 2020 and 31 May 2023 together with those non-disabled HMRC employee who are retiring between 1 June 2020 and 31 May 2023.[195]The formulation of the comparator group is a matter of logic, and it may be possible to have more than one logical group. The group at Pool A as formulated by the Tribunal is not so broad as to encompass all employees, only those who would retire during the payment period, but it does embrace the test in section 19 as it includes those with whom the claimant does not share the characteristic. In this way, applying MOD v DeBique it can realistically and effectively test the allegation that the PCP indirectly discriminates against the claimant. It focuses on those who will be retiring during the pay period, therefore those who may need support as an exceptional circumstance to get added years. Applying the recent EAT decision in Royal Parks v Boohene (in which the EAT applied Essop and Naeem) the pool consists of the entire group the PCP affects or would affect (who might qualify as an exceptional circumstance for support in an application for added years on retirement when retiring during a payment period for a three year pay deal or not) whilst excluding those who are not affected by it.[196]Each of those comparators in Pool A, depending upon the date of their retirement, would experience a different amount of financial impact than each other (the claimant retired 10 months into the pay deal payment period) there may be comparators who retired on a different date than the claimant and different dates from each other but the common factor is that they all would have achieved less in pension than they would have had if they had retired on 1 June 2023 at the completion of the payment period). There is no material difference between the others and the claimant other than his Type 1 diabetes and ME/CFS.[197]This is a case where the Scheme Rules, the exceptional circumstances test, applied to everyone and applying Spicer v Govt Spain the Tribunal had regard to the need to formulate the pool in a way that focused on those who are affected or potentially affected by the PCP, again a focus on those retiring during the payment period was adopted. To have formulated the pool to include all employees or anyone leaving the employ of the respondent or even anyone who was a member for CSP Scheme who had worked at all during the pay freeze could have been logically arguable but would have lost focus on the operation of the PCP and the determination on “exceptional circumstances”. To have narrow the pool (as in Pool A) to those applying for added years on retirement during the payment period could arguably have narrowed the group excessively and potentially over represented the disabled in that group.[198]The pool could be constituted a different way taking into account that it can include all of those affected by the PCP whether negatively or positively Royal Parks. The Tribunal heard evidence from Ms Martin that there had only been three cases since 2000 in which a member had got added years under the “special circumstances” CO discretion presumably with support as an “exceptional circumstance”. Those cases were broader than just HMRC and related solely to recruitment scenarios. It is arguable then that the pool above is drawn too narrowly. The pool could be redrawn to include recruitment cases: Pool B HMRC employees or potential employees seeking to join HMRC who have a disability other than Type 1 diabetes and ME/CFS and who are retiring or joining between 1 June 2020 and 31 May 2023 together with those nondisabled HMRC employees or potential employees who are retiring or joining between 1 June 2020 and 31 May 2023.[199]Each of the comparators in Pool B, joining HMRC, would achieve a different advantage to each other if added years were awarded on appointment depending on their individual circumstances. For example, someone recruited who was leaving another department to join HMRC and losing the benefit of a pay deal in that other department may have years added as an exceptional circumstance, which may be a different number of years added to another new joiner moving from a second different department with a different pay deal. Did the application of such PCP put C at that disadvantage in relation to a relevant matter in comparison with (persons who are not disabled?) persons with whom he does not share his disability[200]The PCP the claimant relies on was the decision of HMRC not to treat him as an exceptional circumstance, not to support him in his application to the CO with a business case and funding to get the added years.[201]The claimant (those with the claimant’s disability) could not now go to CO and seek exercise of the Ministerial discretion in clause 2.24. That was not the particular disadvantage he pleaded. He said it was that his disability/disabilities prevented him from remaining in employment On that formulation his complaint must fail as the operation of the PCP does not put the claimant (those with his disability) at that disadvantage. On his complaint as formulated by the Tribunal for him, so that the disadvantage is not getting the support, his complaint also fails because he is not disadvantaged in comparison with people with whom he does not share that characteristic.[202]The comparison exercise itself was not something that the claimant addressed in his evidence. The claimant said I doubt that there are any other people in my position retiring just at this time as a result of life shortening disabilities. There is clearly no danger, therefore, that exercising your discretion in this way would set a dangerous precedent. No statistics were provided on the composition of any comparator groups by either side save that Ms Martin gave evidence that she believed the respondent to have a workforce in which around 13% were disabled in April 2021.[203]The Tribunal accepts the evidence of Ms Martin that she would not have supported as an exceptional circumstance an application for added years whether an applicant had Type 1 diabetes and ME/CFS or not where it related to a decision to retire during the payment period of a pay deal, seeking betterment than others retiring on that date (whether disabled by reason of Type 1 diabetes or ME/CFS or not) and where to do so would set a precedent of allowing anyone leaving service during a payment period of a pay deal to potentially claim added years to put them in the position they would have been in if they had worked through the payment period. The Tribunal was satisfied on her oral evidence that a non-disabled or otherwise disabled than with Type1 diabetes/ CFS would have experienced exactly the same application of the exceptional circumstances test and decision making outcome as the claimant / a person with the claimant’s disability.[204]The claimant did not adduce any statistical evidence of different treatment between himself and those without Type 1 diabetes ME/CFS either on retirement or recruitment based applications for added years.[205]The Tribunal finds there is no particular disadvantage to the claimant/ those with Type 1 diabetes ME/CFS compared to those who do not have Type 1 diabetes ME/CFS in the exercise of Ms Martin’s discretion on exceptional circumstances.[206]It has not been necessary to consider if HMRC would have succeeded in establishing that the operation of the PCP was a proportion means of achieving a legitimate aim. However, the Tribunal comments that if it had had to conduct that analysis it was likely, by way of provisional view only, to find that the third aim: “To avoid setting a precedent that could possibly endorse and incentivise disabled members of the PCSPS to leave at or before their scheme retirement age and that would also have significant financial implications for HMRC and also for other government departments was both legitimate and proportionately applied.[207]In Pool B, if the claimant had succeeded in establishing particular disadvantage, which he did not (the claimant adduced no evidence of differential treatment between Type 1 diabetic /ME/CFS applicants either on recruitment or retirement and non Type1 diabetic/ ME/ CFS applicants) the Tribunal would have been likely, by way of a provisional view to have found that the first and second aim pleaded by HMRC To comply with the rules of the PCSPS and relevant guidance and not to put forward a business case that did not amount to "special circumstances" for the purposes of those rules and guidance and To maintain compliance with the spirit and letter of the pension scheme rules so as not to encourage pension scheme administrators to overstep the reach of their authority were legitimate aims and that the decision not to support the claimant in his application to CO for added years was a proportionate means of achieving those aims because the Pension Scheme Rules set out the categories of application for added years and there was a category for recruitment and retention. It would also have been proportionate because the applicant for added years would be continuing to work for the respondent. Conclusion The claimant’s complaints against both CO and HMRC fail.[1]The claimant’s disability discrimination complaints came before a full panel comprising EJ Aspinall and non legal members Ms A Ross-Sercombe and Mr A Wells and were heard over four days from 10-13 July 2023 with a fifth day for in chambers deliberation on 16 August 2023.[2]The Tribunal’s Reserved Judgment and Reasons was sent to the parties on 12 September 2023. The claimant’s complaints of discrimination arising from disability and failure to reasonably adjust against The Cabinet Office failed. His complaints against HMRC for discrimination arising from disability, failure to reasonably adjust and for indirect disability discrimination also failed.[3]The claimant’s application for reconsideration was contained in a 36 page and 207 paragraph document dated 25 September 2023. It came to the attention of Employment Judge Aspinall on 3 January 2024. The delay was occasioned by other matters raised by the claimant having been addressed first by the Regional Employment Judge.[4]On 1 February 2024 the claimant sent a revised version of his application for reconsideration to the Tribunal. He said it was to correct typographical errors and clarify meaning. He does not appear to have copied it to the respondent. This document is sent out of time, and, having regard to the overriding objective, it would not be a good use of judicial time to compare the two lengthy documents and respond to each of them. Accordingly, the tribunal is responding to the 25 September 2023 application only. The
Relevant Law
[5]Rule 70 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 provides that a Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so.[6]Rule 71 provides that an application for reconsideration shall be presented in writing and copied to all the other parties within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision as necessary.[7]Rule 72 provides that an Employment Judge shall consider any application made under Rule 71. Where practicable the consideration shall be made by the Employment Judge who made the original decision or who chaired the full Tribunal which made it. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked the application shall be refused.[8]A Tribunal dealing with an application for reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly contained within Rule 2 of the Regulations. This includes ensuring that the parties are an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense.[9]Consideration of whether reconsideration is “necessary in the interests of justice” allows the Tribunal a broad discretion which must be exercised judicially which means having regard not only to the interests of the party seeking the reconsideration but also to the interests of the other party to the litigation, and to the public interest requirement that there should be so far as possible finality in litigation.[10]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[11]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[12]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” Application of law on reconsideration[13]This Tribunal has not seen a copy of the covering email by which the claimant made his application for reconsideration. It does not know if the claimant has complied with the requirement in Rule 71 which provides that an application for reconsideration shall be presented in writing and copied to all the other parties. It appears from correspondence that the Tribunal has seen that the application was copied to the following address matthewwhelan@governmentlegal. No representations have been received from either respondent.[14]The majority of the points raised by the claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing.[15]In particular the claimant seeks to re-open findings about the Rest Record document and about his disabled status due to his ME/CFS prior to October 2021. Having read the application, the Reserved Judgment and revisited the notes of evidence at final hearing, the Tribunal finds that it has not missed something important and there is nothing new that could not reasonably have been put forward at the hearing in relation to any of the matters raised in the application. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour.[16]In the application the claimant attempts to reframe the List of Issues in particular the PCPs he relied on. At paragraph 140 of his application (which refers to paragraph 140 of the Reserved Judgment) he says: “The offending PCP was the practice of refusing to grant adjustments of this kind except in cases of recruitment and retention. This lay behind the actions of both parties. It is not clear why the Tribunal cannot regard this as the relevant PCP, simply because it wasn’t articulated properly in an obviously defective list of issues.”[17]That was not a PCP relied on at the hearing. The PCPs were set out in the agreed List of Issues.[18]At paragraph 135 of his application he says: “The claimant said during submissions that it had become clear during cross-examination that the key offending PCP was the practice by both respondents of only applying rule 2.24 to recruitment and retention issues. The claimant argued this was prejudicial to him and to disabled people generally…..”[19]And at paragraph 136: “why...did an experienced judge and barrister go along with an obviously defective form of words ……”[20]At paragraph 140 of the application the claimant invites the Tribunal to review its decision about the correct PCP.[21]This shows the claimant’s attempt to relitigate. He agreed the List of Issues. The Tribunal dealt with the List at paragraphs 5 – 8 of the Reserved Judgment and specifically with his drafting of his PCPs at paragraph 7 and paragraphs 135 -138 of the Reserved Judgment. It was not the role of the Tribunal nor the respondent to construct his case for him. His PCPs were clearly drafted in the List of Issues and the claimant’s request that the matter be reconsidered on the basis of a reframed PCP is rejected as being an attempt to relitigate.[22]The reconsideration application also attempts to bring a claim of indirect disability discrimination against The Cabinet Office. The claimant was offered a short adjournment to have time to consider whether or not he wished to make an amendment application at 10.42 on the first day of the hearing (for this purpose) and said he did not need a break, he was clear that he did not wish to pursue a complaint of indirect discrimination against anyone other than HMRC. This point was addressed at paragraph 6 of the Reserved Judgment and is rejected as a request for reconsideration on the basis that it is an attempt to relitigate.[23]The principle that the claimant cannot seek reconsideration in order to relitigate disposes of almost all the points made by the claimant. However, there are some points he makes which should be addressed specifically:(1) He is right that the numbering of the Reserved Judgment goes awry at paragraph 30 on page 11. The Tribunal apologises to the parties for that formatting error.(2) The Tribunal apologises for getting Mr Mark Beadles’ name wrong.(3) The Tribunal apologises for not recording the exact age at which the claimant was diagnosed with Type1 diabetes. The Reserved Judgment recorded his having been diagnosed as a young man and at 17. The Tribunal accepts his statement in his application that he was diagnosed at 16.(4) The claimant alleges a procedural irregularity in that Ms Ling the respondent’s barrister was able to further cross-examine the claimant about a matter arising out of a panel question. The notes of hearing have been checked and the Tribunal does not accept that there was a procedural irregularity. Miss Ling objected to the claimant having given evidence in response to a panel question that was not in his witness statement. The panel consulted the parties and it was agreed at 10.25 on the second day, that Miss Ling may question the claimant on that point only, which she did and which the claimant answered. There is no reasonable prospect of this point (alleged procedural irregularity) resulting in the decision of the Tribunal being varied or revoked.(5) He says his brain fog meant that he did not deliver his evidence as cogently and coherently as he would have liked to. Paragraphs 9 – 11 of the Reserved Judgment deal with the discussion about reasonable adjustments in place for the hearing. The claimant had prepared a written witness statement. The notes of hearing reveal that the claimant was offered breaks and checks were made that he was not experiencing brain fog and was able to continue at regular intervals during the final hearing. On each occasion he confirmed he was well and wanting to continue. He had prepared two separate Closing Submission Skeleton Argument documents and spoke to them in oral closing submission. The Tribunal notes that he said in his application for reconsideration that he was content that he was able ultimately to make most of the points he originally wanted to make. The Tribunal finds that his suggestion now that his brain fog affected his presentation of his case does not amount to a reasonable prospect of the judgment being varied or revoked.[24]None of the points in paragraph 23 above taken individually or together amount to a reasonable prospect of the judgment being varied or revoked.[25]The claimant requests Written Reasons in his application. They have been provided in the Reserved Judgment. He requests the handwritten notes of the Judge and members. They are not available to him from the Employment Judge. His request has been passed to the Regional Employment Judge.[26]He asks for rectification / correction of the Judgment where it accuses him of mendacity. No such accusation is made.
Conclusion
[27]The claimant’s grounds relate to matters that were before the Tribunal and have been determined. There is nothing new here that would affect or have affected the outcome. The law is clear that matters that have been determined cannot be reopened in this way for further discussion or persuasion.[28]In reaching the decision not to reconsider the Tribunal has had regard to the importance of finality in litigation for both parties and has considered the impact of a reconsideration determination either on paper or in person for the parties and the cost to which that would put both parties.[29]The Tribunal rejects the request for reconsideration on the ground that it is not necessary in the interests of justice as there is no reasonable prospect that any one of the grounds set out in the claimant’s application, or all of them taken together, could lead to the original decision being varied or revoked.