Ms N Clark and Mrs M Bell v Chief Constable of Derbyshire Constabulary and Chief Constable of West Midlands Police and Secretary of State for the Home Department: 2603987/2020 and 1300244/2021
EMPLOYMENT TRIBUNALS
Case No 2603987/2020, 1300244/2021
Between
Ms N Clark and Mrs M BellClaimant1. Chief Constable of Derbyshire Constabulary andRespondent
Before
Employment Judge BlackwellMr J Feeny (instructed by Counsel First Respondents: Mr P Lockley of Counsel Second Respondent: Ms E Hodgetts of Counsel Covid-19 statement:) for claimantDate 18 April 2023
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear complaints of disability discrimination brought under Sections 15 and 19 of the Equality Act 2010 (2010 Act) through the gateway of Section 39 of that Act.[2]The Tribunal does not have jurisdiction to hear complaints of disability discrimination brought under Sections 15 and 19 of the 2010 Act through the gateway of Section 108 of the 2010 Act.[3]The Tribunal does have jurisdiction to hear complaints of disability discrimination brought under Sections 15 and 19 of the 2010 Act through the gateway of Section 61 of that Act.
REASONS
[1]I heard no evidence but took into account written statements from Ms Lofts, the Policy Support Manager of the Police Federation of England and Wales and Mr P Spreadbury, a Deputy Director in the Home Office. The factual elements of both statements are agreed between the parties and effectively set out the history of benefits payable to police officers who were injured or killed in the execution of their duty. All three Counsel provided helpful written skeleton arguments and supplemented those orally. There was an agreed bundle of documents referred to as MB. Mr Feeny provided a Claimants’ authorities bundle (CAB) and Counsel for both Respondents provided an equivalent bundle (RAB).[2]The issues are set out at MB page 67, save that the first issue in relation to jurisdiction under section 29 of the Equality Act 2010 (2010 Act) disappears, being abandoned by both Claimants.[3]Issue one Thus, the first issue is: Does the Employment Tribunal have jurisdiction to hear the complaints of discrimination brought under sections 15 and 19 of the 2010 Act through the gateway of s. 39 of that Act? The relevant statutory law is set out in sections 39 and 42: “39 Employees and applicants(1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.(2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.(3) An employer (A) must not victimise a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.(4) An employer (A) must not victimise an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.(5) A duty to make reasonable adjustments applies to an employer.(6) Subsection (1)(b), so far as relating to sex or pregnancy and maternity, does not apply to a term that relates to pay— (a) unless, were B to accept the offer, an equality clause or rule would have effect in relation to the term, or (b) if paragraph (a) does not apply, except in so far as making an offer on terms including that term amounts to a contravention of subsection (1)(b) by virtue of section 13, 14 or 18.(7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a) by the expiry of a period (including a period expiring by reference to an event or circumstance); (b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.(8) Subsection (7)(a) does not apply if, immediately after the termination, the employment is renewed on the same terms.” “42 Identity of employer (1) For the purposes of this Part, holding the office of constable is to be treated as employment— (a) by the chief officer, in respect of any act done by the chief officer in relation to a constable or appointment to the office of constable; (b) by the responsible authority, in respect of any act done by the authority in relation to a constable or appointment to the office of constable. (2) For the purposes of this Part, holding an appointment as a police cadet is to be treated as employment— (a) by the chief officer, in respect of any act done by the chief officer in relation to a police cadet or appointment as one; (b) by the responsible authority, in respect of any act done by the authority in relation to a police cadet or appointment as one. (3) Subsection (1) does not apply to service with the Civil Nuclear Constabulary (as to which, see section 55(2) of the Energy Act 2004). (4) Subsection (1) does not apply to a constable at NCA or SPA. (5) A constable at NCA or SPA] is to be treated as employed by it, in respect of any act done by it in relation to the constable. …”[4]Background findings of fact4.1 Ms Clark was required to retire on 15 November 2019 pursuant to Regulation A20 of the Police Pensions Regulations 1987 (PPR 1987).4.2 Mrs Bell was also required to retire pursuant to the same provision on 9 November 2018.4.3 Both were awarded ill-health pensions pursuant to Regulation B3.4.4 Further, both were awarded an injury pension pursuant to Regulation 11 of the Police (Injury Benefit) Regulations 2006 (PIBR 2006).4.5 Both applied for a disablement gratuity pursuant to Regulation 12 of the PBBR 2006 and, in both cases, such gratuity was refused. It is in relation to that refusal that both Claimants wish to bring claims of disability discrimination under sections 15 and 19 of EA 2010.[5]Mr Feeny did not pursue the gateway through section 39. The retirement of both Claimants brought about the end of their employment before either of them brought claims in this tribunal: Ms Clark on 4 November 2020 and Mrs Bell on 21 January 2021. Given that they were not employees at the time of bringing their respective claims, it follows that claims cannot be brought pursuant to section 39. Issue 2[6]Does the Employment Tribunal have jurisdiction to hear complaints of discrimination brought under sections 15 and 19 of the EA 2010 though the gateway of section 108 of the 2010 Act? The relevant statutory law is set out in section 108 of the 2010 Act: “108 Relationships that have ended(1) A person (A) must not discriminate against another (B) if— (a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.(2) A person (A) must not harass another (B) if— (a) the harassment arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the harassment would, if it occurred during the relationship, contravene this Act.(3) It does not matter whether the relationship ends before or after the commencement of this section.(4) A duty to make reasonable adjustments applies to A [F1if B is] placed at a substantial disadvantage as mentioned in section 20.(5) For the purposes of subsection (4), sections 20, 21 and 22 and the applicable Schedules are to be construed as if the relationship had not ended.(6) For the purposes of Part 9 (enforcement), a contravention of this section relates to the Part of this Act that would have been contravened if the relationship had not ended.(7) But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A.”[7]As Ms Hodgetts has helpfully pointed out, section 108 sought to codify the decision of the House of Lords in the case of Rhys-Harper v Relaxion Group plc [2003] ICR 867. I was also referred to the case of Ford Motor Company Ltd v Elliott & others [2016] ICR 711 and in particular at paragraph 26: “26. … the question to be considered under section 108(1)(a) is not, as the EJ directed himself, whether there was a close connection between the Claimants’ relationship with the Respondent as former employees and that as current pensioners in which capacity they bring their claims. The question is whether the discrimination alleged, in this case the difference between the lump sum payments made to active employee members of the FPSSS, and the additional pension increase made in 2011 to pensioner members, arose out of and was closely connected to the employment relationship which used to exist between them and the Respondent. … ”[8]As to section 108(1)(b), again from Elliott paragraph 29: “29. …The EJ was not required to decide whether the Claimants’ claims were established. However, the EJ erred in failing to consider and decide whether the allegations in the ET1s, if established, would show that the circumstances in which the payments to the Claimants and to their comparators were not materially different so as to found a claim of discrimination contrary to the EqA. Such a decision is necessary to determining whether the claims fall within section 108(1)(b). …”[9]As to the question under subsection 1(a), both Counsel for the Respondents submit that there was no close connection and that there was no causative nexus between the alleged discriminatory conducted relied upon and events in the previous relationship going beyond a “but for” connection. It seems to me that on the facts, the refusal to pay gratuities under Regulation 12 arose out of the relationship between the First Respondents exercising his duties under the PIBR 2006 and the Claimants seeking benefit thereunder. Also, the Respondents are both adopting the reasoning of the ET in the case of Curry v The Chief Constable of Northumbria Police [2500281/2017], a decision of Employment Judge Buchanan beginning at page 211 of RBA.[10]Both Counsel for the Respondents also adopt the reasoning of EJ Buchanan in that; “the conduct of the Respondent which is impugned by this claim could not have occurred during the employment relationship because the allegations arise out of the scheme into which the claimant was admitted only after the relationship ended and as a consequence of it ending.”[11]Mr Feeny argues that the Tribunal should take a liberal approach to the conduct relied upon. Denial of the disablement gratuity would on an ordinary reading meet the definition of section 39(2)(d), ie denial of access to a benefit. The fact that the benefit is only payable following retirement should be considered under the subsection 1(a) test instead. He further argues that the discriminatory refusal to pay the benefit, ie the gratuity, arises out of the previous relationship of Chief Officer as employer and Constable as employee and is closely connected to it, not least because of the execution of duty requirement.[12]I respectfully adopt the reasoning of EJ Buchanan both in relation to 1(a) and 1(b) and I therefore conclude that the section 108 gateway is not open to the Claimants. Issue 3[13]Does the ET have jurisdiction to hear the complaints of discrimination brought under sections 15 and 19 of the 2010 Act through the gateway of section 61? “61 Non-discrimination rule (1) An occupational pension scheme must be taken to include a non-discrimination rule. (2) A non-discrimination rule is a provision by virtue of which a responsible person (A)—(a) must not discriminate against another person(b) (B) in carrying out any of A's functions in relation to the scheme; (b) must not, in relation to the scheme, harass B;(c) must not, in relation to the scheme, victimise B. (3) The provisions of an occupational pension scheme have effect subject to the non-discrimination rule. (4) The following are responsible persons— (a) the trustees or managers of the scheme; (b) an employer whose employees are, or may be, members of the scheme; (c) a person exercising an appointing function in relation to an office the holder of which is, or may be, a member of the scheme. (5) A non-discrimination rule does not apply in relation to a person who is a pension credit member of a scheme. (6) An appointing function is any of the following— (a) the function of appointing a person; (b) the function of terminating a person's appointment; (c) the function of recommending a person for appointment;(d) the function of approving an appointment. (7) A breach of a non-discrimination rule is a contravention of this Part for the purposes of Part 9 (enforcement). (8) It is not a breach of a non-discrimination rule for the employer or the trustees or managers of a scheme to maintain or use in relation to the scheme rules, practices, actions or decisions relating to age which are of a description specified by order by a Minister of the Crown. (9) An order authorising the use of rules, practices, actions or decisions which are not in use before the order comes into force must not be made unless the Minister consults such persons as the Minister thinks appropriate. (10) A non-discrimination rule does not have effect in relation to an occupational pension scheme in so far as an equality rule has effect in relation to it (or would have effect in relation to it but for Part 2 of Schedule 7). (11) A duty to make reasonable adjustments applies to a responsible person.” The Pension Schemes Act 1993 provides: “1.(1) In this Act, unless the context otherwise requires– ”occupational pension scheme” means a pension scheme– (a) that– (i) for the purpose of providing benefits to, or in respect of, people with service in employments of a description, or (ii) for that purpose and also for the purpose of providing benefits to, or in respect of, other people, is established by, or by persons who include, a person to whom subsection (2) applies when the scheme is established or (as the case may be) to whom that subsection would have applied when the scheme was established had that subsection then been in force, or a pension scheme that is prescribed or is of a prescribed description; “personal pension scheme” means a pension scheme that– (a) is not an occupational pension scheme, and (b) is established by a person within section 154(1) of the Finance Act 2004; “public service pension scheme” means an occupational pension scheme established by or under an enactment or the Royal prerogative or a Royal charter, being a scheme– (a) all the particulars of which are set out in or in a legislative instrument made under, an enactment, Royal warrant or charter, or (b) which cannot come into force, or be amended, without the scheme or amendment being approved by a Minister of the Crown or government department, and includes any occupational pension scheme established, with the concurrence of the Treasury, by or with the approval of any Minister of the Crown and any occupational pension scheme prescribed by regulations made by the Secretary of State and the Treasury jointly as being a scheme which ought in their opinion to be treated as a public service pension scheme for the purposes of this Act. (2) This subsection applies– (a) where people in employments of the description concerned are employed by someone, to a person who employs such people, (b) to a person in an employment of that description, and (c) to a person representing interests of a description framed so as to include– (i) interests of persons who employ people in employments of the description mentioned in paragraph (a), or (ii) interests of people in employments of that description. (3) For the purposes of subsection (2), if a person is in an employment of the description concerned by reason of holding an office (including an elective office)and is entitled to remuneration for holding it, the person responsible for paying the remuneration shall be taken to employ the office-holder. (4) In the definition in subsection (1) of “occupational pension scheme”, the reference to a description includes a description framed by reference to an employment being of any of two or more kinds. (5) In subsection (1) “pension scheme” (except in the phrases “occupational pension scheme”, “personal pension scheme” and “public service pension scheme”) means a scheme or other arrangements, comprised in one or more instruments or agreements, having or capable of having effect so as to provide benefits to or in respect of people– (a) on retirement, (b) on having reached a particular age, or (c) on termination of service in an employment. (6) The power of the Treasury under section 154(4) of the Finance Act 2004 (power to amend sections 154 and 155) includes power consequentially to amend– (a) paragraph (a) of the definition in subsection (1) of “personal pension scheme”, and (b) any provision in force in Northern Ireland corresponding to that paragraph.”[14]Thus, the issue is whether the PIBR 2006 is an occupational pension scheme within the meaning of section 1, subsection (5) of the 1993 Act. In short, if it is then the Tribunal will have jurisdiction to hear claims of disability discrimination. If not, the Claimants will not have redress before an Employment Tribunal.[15]Ms Hodgetts has helpfully set out at paragraph 4 of her skeleton the history of police injury awards.[16]The disablement gratuity which is the subject of this litigation was first provided for by Regulation 4 of the Police Injury Benefit Regulations 1987. Eligibility did not depend upon membership of a police pension scheme and that remains the case.[17]In 2001 to 2005, there was a review of the financing of police pensions, which included the staff side of the Police Negotiation Board (which includes the Police Federation). It seems to have been common ground that injury awards were not part of pension benefits. At broadly the same time, there was a wideranging review of the tax regime in respect of registered pension schemes and the Finance Act 2004 became law. As a consequence, the PIBR 2006 was also enacted. Beginning at page 243 is the explanatory memorandum to the PIBR 2006. At paragraph 4.3: “4.3 This situation changes when the new tax regime for registered pension schemes – introduced by the Finance Act 2004 – comes into effect on 6 April this year. Any unauthorised payment will incur a tax charge. In order not to let the Police Pension Scheme incur such charges it is necessary to separate the injury benefits from the pension scheme regulations.”[18]At paragraph 7 headed “Policy background”: “7.1 Police injury awards do not depend on membership of the Police Pension Scheme, but are in effect compensation for work-related injuries. Benefits comprise pensions and gratuities for former officers who are permanently disabled as a result of an injury received without their default in the execution of duty, and survivors’ pensions and gratuities for spouses, civil partners, children and adult dependent relatives where the officer dies as a result of such an injury. 7.2 For the reasons set out in paragraph 4, this instrument brings together the current regulations relating to injury benefits into a separate document from the SI for the Police Pension Scheme. The instrument is not a formal consolidation since the opportunity is taken to update references to widows (now called adult survivors) and, in line with the new HMRC requirements, to apply an age limit of 23 years to child benefits where the child is not permanently disabled. …”[19]The two Regulations with which we are most concerned are Regulations 11 and 12 and they can be found at pages 43 and 44 of the Second Respondent’s bundle of law: “11.- Police officer’s injury award(1) This regulation applies to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Schedule 3 referred to as the “relevant injury”).(2) A person to whom this regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Schedule 3; but payment of an injury pension shall be subject to the provisions of paragraph 5 of that Schedule and, where the person concerned ceased to serve before becoming disabled, no payment shall be made on account of the pension in respect of any period before he became disabled.” “12.- Disablement gratuity (1) This regulation applies to a person who – (a) receives or received an injury without his own default in the execution of his duty, (b) ceases or has ceased to be a member of a police force, and (c) within 12 months of so receiving the injury, becomes or became totally and permanently disabled as a result of that injury. …”[20]Regulation 30(2) is also, to an extent, relevant in that it deals with references to a duly qualified medical practitioner to consider – “… (c) whether the disablement is the result of an injury received in the execution of duty, and (d) the degree of the person’s disablement. …”[21]That Regulation also makes it clear that the decision that an officer is disabled pursuant to A20 of the PPR 1987, referred to above, is not to be reopened. Mr Feeny’s submissions on behalf of the Claimants[22]Firstly, Mr Feeny submits that the Claimants need to satisfy whether the PIBR 2006: “a. Is a scheme or other arrangement comprised in one or more instruments or agreements …; and b. Has or is capable of having effect so as to provide benefits to or in respect of people …: i. On retirement; ii. On having reached a particular age; or iii. On termination of service in employment; and c. Has the purpose of providing benefits to, or in respect of, people with service in employments of a description, or for that purpose and also for the purpose of providing benefits to, or in respect of, other people [eg benefits to widows]; and d. When established applied to people in employment of the description in subsection (2) …. Subsection (3) defines employment in subsection (2) to include office-holders, so includes police officers.”[23]Mr Feeny further submits that PIBR 2006 are within the definition of scheme regulations in the Public Service Pensions Act 2013.[24]He then refers me to three cases: Westminster City Council v Haywood & others [1997] Pens LR 39, Court of Appeal which concerned a severance scheme offered by a local authority to departing employees at a certain age met the section 1 PSA definition (albeit a different definition to the one with which I am currently concerned).[25]The second case was: City and County of Swansea v Johnson [1999] Pens LR 187, HC. That case concerned again whether an injury allowance due under the Local Government Superannuation Regulations 1986 as a result of contracting asbestosis during his employment with the local authority. Mr Feeny prays in aid paragraphs 14 and 15 of the Judgment of Mr Justice Hart: “14. As to that question, I begin with the intuitive predisposition to find that a scheme of this nature, i.e. one whereby the employer binds itself to pay compensation on a no fault basis on termination of employment as a result of injury sustained or disease contracted in the course of employment is not an occupational pension scheme. It is, however, difficult to say that such a scheme does not provide ‘benefits, in the form of pensions or otherwise, payable on termination of service’. Those words are, as Millett LJ (as he then was) pointed out in Westminster City Council v Haywood [1998] Ch 377 at 409 of wide ambit. Other examples may be given of schemes or arrangements, not otherwise obviously pension schemes, which are potentially within those words: a provision, for example, in an employment contract for agreed damages in the event of dismissal before the expiry of the contractual employment term, or for compensation for termination of the employment contract on grounds of redundancy. 15. I do not, however, think that it is open to me to hold that some gloss can be put on the words ‘benefits … payable on termination of service’ so as, without more, to exclude from their ambit payments of the types mentioned above. Westminster City Council v Haywood was itself concerned with the question of a complainant’s entitlement to compensation under a severance scheme, and the court, both at first instance and on appeal regarded the determinative question to be whether the severance scheme was separate from the pension scheme. In that case the answer to that question was determinative because, as the law then stood, a complainant before the Ombudsman had to show that he had been ‘in pensionable service’ under the scheme. Had the nature of the benefits claimed under the severance scheme been regarded by the court as outside the words in section 1 of the 1993 Act, that would have been a material consideration in itself on the question whether the severance scheme should be regarded as a separate scheme. But no reliance was placed on any such point in the judgment of the Court of Appeal. It is also the case that the scheme (or subscheme) of which regulation L3 forms part does include provision for benefits payable otherwise than on termination of service (see regulation L4) and, in that respect at least, does not fulfil the definition of an ‘occupational health scheme’ in section 1 of the 1993 Act. I am not, however, persuaded that the inclusion of such an extraneous benefit necessarily takes the scheme outside the definition if it otherwise qualifies. The appellant did not seek so to argue”[26]The third case was that of Parlett v Guppys (Bridport) Ltd (No. 2) [2000] Pens LR 195 CA. Mr Feeny submits that as a consequence of Parlett, whilst accepting that police officers do not have to opt in or contribute to the Police Pension Scheme to be eligible for PIBR benefits, it is the fact of service that qualifies the individual for a payment under PIBR. He also cites Thorpe LJ, citing part of Millet LJ’s Judgment in the Westminster City Council case, as follows: “31 The only other authority to which we have been referred on the point is Westminster City Council v Haywood [1998] Ch 377. Millet LJ observed at p455B that the definition of occupational pension scheme is a very wide definition. Such assistance as there is, therefore, encourages me to take the view that ‘occupational pension scheme’ should be construed liberally and not restrictively.”[27]Mr Feeny further submits that the conditions in subsection (5) of section 1 do not limit further conditions which may also have to be met for eligibility to arise. If this was so, Mr Johnson’s ill health pension would also have fallen outside the scheme.[28]He also submits that whilst the PIBR 2006 is a non-contributory scheme, that does not undermine the legal test the Tribunal must apply under section 1 PSA. He further submits that the Claimants in this case are pensioner members within the definition of the Pensions Act 1995, section 124. The Respondents’ submissions[29]Mr Lockley and Ms Hodgetts broadly adopted each other’s submissions and amplified orally their own particular points, so I trust they will not be offended if I regard their submissions as joint.[30]The main thrust of their submissions was that the PIBR 2006 is a scheme for compensation for officers injured or killed (emphasis on killed) whilst on duty. It is not an occupational pension scheme in the normally understood context, ie pension being a question of deferred pay. In that context, they note that the definition in section 1 PSA no longer includes benefits contingent upon death and that the PIBR 2006 does include such benefits. They also submit that a disablement gratuity paid under Regulation 12 is not payable on retirement on having reached a particular age or on termination of service because further conditions must be satisfied, namely that the applicant becomes or has become totally and permanently disabled within 12 months of and as a result of sustaining injury of a kind specified in Regulation 12(1)(a).[31]They submit that it was open to Parliament on a number of occasions to include the wider definition contained within section 150(1) of the Finance Act 2004, which included the further definition, namely: “On the onset of serious ill health or incapacity”. In particular, they point to the fact that the Disability Discrimination Act 1995 was amended in October 2004 and, once again, Parliament did not take the opportunity to include the wider definition. They assert that that was a deliberate legislative choice to use that narrower definition. They also assert that the ET in the Curry case to which I have referred above was wrong to conclude that the PIBR 2006 fell within the definition of section 1 PSA, firstly because the Tribunal was wrong to find that the definition was inclusive rather than exclusive, ie that the benefits to be provided under the Scheme have only to be provided to a person on retirement or on termination of service. This disregards the fact that Parliament has specifically chosen the narrower of the two available definitions and further that that point seems not to have been argued before the Curry Tribunal.[32]Secondly, that the Tribunal in Curry did not have regard to the fact that it is a creature of statute and its jurisdiction is therefore confined to that which is endowed by statute and, further, that no evidence was adduced to that Tribunal of the history of the PIBR and the fact that it was taken out of the Police Pension Scheme Regulations as a consequence of the taxation changes brought about by the Finance Act 2004.[33]The Respondents’ Counsel also referred me to authorities which relate to a number of challenges brought by way of Judicial Review to the decisions of either Police Medical Appeal Boards or Police Authorities. In particular, they cite the following from the Judgment Henderson LJ in the case of Evans and Ashcroft v The Chief Constable of the South Wales Police [2018] EWCA Civ 2107: “2. An injury award payable under the 2006 Regulations is separate from any pension or pension-related benefits to which the person in question (whom I will call the “police officer”) may be or become entitled under the police occupational pension scheme, which was governed at the material times by the Police Pensions Act 1976 and the Police Pensions Regulations 1987 (“the 1987 Pensions Regulations”). …”[34]In the context of that citation and those authorities generally, I do not believe they are helpful. It is common ground that the 2006 Regulations are separate, and all of the authorities referred to are dealing with decisions made under the PIBR and not the question that is before me.
Conclusions
[35]The issue is simply put, does PIBR 2006 fall within the definition of section 1 PSA? In reaching my conclusion, I have not put any weight on the fact that Government, the Police Authorities and the Police Federation do not consider the PIBR 2006 to be an occupational pension scheme. In my view, my task is simply one of statutory interpretation, aided by relevant authorities.[36]As to those authorities, the Respondents criticise the Haywood, Johnson and Parlett cases on the basis that they were dealing with a definition of occupational pension scheme that is different to the one which I have to construe. In particular, there were references to death and qualifying service. However, notwithstanding the change in definition, they were carrying out an analogous task namely, to consider whether the Pensions Ombudsman had jurisdiction. Further, in my view the Johnson case is of direct application. Mr Johnson’s application concerned an entitlement to an injury allowance which arose after early retirement. One of the grounds of appeal was “that the Pensions Ombudsman did not have jurisdiction to entertain the complaint since the scheme of allowance as contained in Part L of the 1986 Regulations did not amount to an occupational pension scheme within the meaning of section 1 of the Pension Schemes Act 1993”.[37]I have cited above paragraphs 14 and 15 of that Judgment which in my view are highly persuasive.[38]Further, the obiter dicta of Millet LJ in the Harwood case, cited and approved by Thorpe LJ in Parlett, is again highly persuasive.[39]I also adopt the reasoning of the Learned Judge in the Curry case at paragraph 40 and in particular: “… Thus benefits under the Scheme only arise if an officer has ceased to be a member of a police force. But if an officer has so ceased then he has retired from the police force albeit because of that disability. The word “retirement” must cover a situation different to retirement on reaching a particular age for that is specifically provided for. Furthermore the benefits to the claimant clearly arise on the termination of his employment as Regulation 11 only applies when membership of the police force has ceased and thus employment ended. …”[40]I would further say that Regulations 11 and 12 must be read together because Regulation 11 makes reference to the gratuity provided for in Regulation 12.[41]I accept of course that the PIBR has been decoupled from the Police Pension Scheme, but it seems to me that that is purely as a consequence of avoiding a tax disadvantage and/or on administrative grounds. That does not seem to me to be of any great weight. The question remains, do the PIBR 2006 fall within the section 1 definition and I am satisfied that they do. In reaching that conclusion, I rely in particular on the Johnson case and the fact that Regulations 11 and 12 should be read together.[42]It follows therefore that the Claimants have the right to pursue claims under section 15 and section 19 of the 2010 Act by reason of section 61 of that Act.
Conclusions
Conclusions
[1]The Claimant’s claim of discrimination was presented out of time; It is not just and equitable to extend time;[3]The Tribunal has no jurisdiction to hear the claim which is therefore dismissed.[1]This Open Preliminary Hearing was listed by Employment Judge Brewer at a Closed Preliminary Hearing on 6 April 2022. After a number of concessions by the parties, the remaining issues to be decided in this hearing are:(i) Was the claim under section 61 of the Equality 2010 (“EqA”) for discrimination arising from disability and indirect disability discrimination presented outside the time limits set down in section 123 EqA; and(ii) If so, is it just and equitable to extend time so that the claim may continue.(iii) If the claim is allowed to proceed, I must determine the Respondent’s application for a deposit order on the ground that the claim has little reasonable prospect of success.
The Evidence
[2]I heard oral evidence from the Claimant who also provided a witness statement. There was also an agreed bundle of documents and references to page numbers in this judgment are to page numbers in that bundle.
Background
[3]The factual background to the claim is largely not in dispute. The Claimant was a serving Police Officer working in the Anti-Corruption Unit (“ACU”). A number of issues, including, inter alia, breaches of confidentiality and a very significant workload, conspired to affect the Claimant’s mental health which it seems from her Injury On Duty (“IOD”) application crystalised in March 2016 when she approached her DCI. She explained to him that she was overworked, wondered whether this was a deliberate ploy to force her out of the ACU and said the workload was unsustainable and stressing her out (page 150). In essence, it seems little was done to alleviate the Claimant’s stress and on 20 April 2016 she had a panic attack at work (page 151).[4]She subsequently saw her GP who initially signed her off as being unfit for work for two weeks. In fact, she never returned to work.[5]After taking medication, attending therapy sessions, examinations by occupational health and psychiatric examinations, the Force Medical Officer supported the Claimant’s application for ill health retirement which was deemed to be the best outcome for the Claimant (page 155). She retired from the Police Force on 9 December 2018.[6]The Claimant then made an IOD award application as a result of which Dr Charles Vivian, who was acting in his capacity of Selected Medical Practitioner, updated his previous report made after seeing the Claimant on 26 September 2018. Dr Vivian had sight of psychiatric reports by Dr Tehrani and earlier by Dr Brisco (page 161). He concluded that, “it is reasonable to believe that her health will improve over time, and this will enable her to re-enter the workplace, albeit in a civilian capacity. This may occur within the next 3 to 5 years”. He recommended a review in 3 years.[7]On 24 June 2019, Mr Martin Keating, Occupational Health – Service Delivery Manager Health, Wellbeing and Case Management, wrote to the Claimant to confirm her application for an IOD award had been successful setting her loss of earning capacity at 100% (Band 4) (page 169). The letter set out what the Claimant should do if she disagreed with the decision of the Selected Medical Practitioner. It also set out that the Claimant needed to provide information on her DWP benefits before the amount of the award could be calculated. This proved to be a rather long winded process for the Claimant.[8]The award to the Claimant was assessed at a lump sum of £19,288.12 which was confirmed to her by Ms Andrea Tonks, Service Delivery Manager (Pensions) by email on 24 July 2019 (page 175). This award was made under Regulation 11 of the Police Injury (Benefit) Regulations 2006 (“the Regulations”) and the Claimant does not dispute this assessment which was eventually paid in January 2020.[9]On 28 June 2019, the Claimant wrote to Ms Tonks by email saying, “From what I have been advised and to what I understand I will be given the disablement gratuity due to being 100% disabled and that being Band 4. Can you please confirm this for me” ?(page 168). Although not specifically referred to in her email, the Claimant had in mind Regulation 12 which Ms Tonks referred to in her email to the Claimant dated 24 July 2019 (page 175) in which she said, “I can confirm Regulation 12 applies to a person who –(a) Receives or received an injury without his own default in the execution of duty;(b) Ceases or has ceased to be a member of the Police Force; and(c) Within 12 months of so receiving that injury becomes or became totally and permanently disabled as a result of that injury. Occupational health have confirmed the injury for which the ill health and IOD application has been supported, commenced from 2013 to 2017 and therefore does not meet the criteria of Regulation 12 (c)”.[10]Thereafter, the interpretation of correspondence between the Claimant and Ms Tonks and the earlier correspondence with Ms Janet Pearce, Transactional Team Leader (Pensions) becomes a matter of dispute.
The Issues
[11]It seems to me, the issues to be determined are:(1) What was the date of the decision not to make an award under Regulation 12 which the Claimant claims is the discriminatory act which defines the date on which time begins to run?(2) Was the subsequent claim presented to the Tribunal therefore prima facie out of time?(3) If so, was the act relied on a continuing act for the purposes of section 123(3) EqA?(4) If not, is it just and equitable to extend time under section 123(1)(b) EqA? The Date of the Decision[12]There is a dispute as to the date of the decision but, in my view, the documents should be considered logically and literally. The application for an IOD award (page 147) does not differentiate between awards under Regulations 11 and 12. It covers both possibilities. Thus, Mr Keating’s letter of 24 June 2019 (page 169) with the heading “Subject: Application for Injury on Duty Award – Successful” must be the date of the act complained off. The Claimant was somewhat vague as to when she received this letter but confirmed she received it by email and post. That this is the date of the alleged discriminatory act is supported by the Claimant’s email to Ms Tonks dated 28 June 2019 (page 168) in which she asks for confirmation she will be given the “disablement gratuity” under Regulation 12. By this time, the Claimant is on notice that no award under Regulation 12 has been made.[13]Ms Tonks email to the Claimant of 24 July 2019 (page 175) is not, in my view, the date of the act of discrimination because, the application for an IOD award having already been determined, this email is merely explanatory.[14]In either case, the presentation of the claim on 21 July 2021 is well out of time.[15]The Claimant argues there was a continuing act on three alternative grounds:(1) The failure to reconsider the decision not to make a Regulation 12 award before or after a request from her solicitors on 29 September 2020 (page 218); or(2) The discrimination was a continuous application of a policy, rule, scheme, or practice thus amounting to conduct extending over time; or(3) It is just and equitable to extend time. The Continuing Act Ground[16]Mr Feeny argues, in terms, that the continuous act of discrimination subsists in the failure to reconsider the Regulation 12 decision as this amounts to a continuous application of a PCP which puts the Claimant at a disadvantage. I note, however, the distinction between a discriminatory act which has continuing consequences and one that is a continuing act of discrimination. In this regard, I am persuaded by the judgment in Parr v MSR Partners LLP [2022] EWCA Civ 24 where The Court of Appeal held that an equity partner”s demotion to salaried partner was not a continuing act even if he suffered losses many years after the demotion since the demotion was the point at which limitation ran. In the case before me, I consider that the decision on the IOD award was a one-off act and time began to run from the date of that decision. Similarly, in Miller v Ministry of Justice (2019) UK SC 60 the less favourable treatment occurred at the point at which fee paid Judges retired with no pension being payable.[17]Further in British Medical Association v Choudhary [2007] EWCA Civ 788, the Court of Appeal made reference to the continuous application of a policy, rule, scheme or practice operated by an employer in respect of his employees throughout their employment and the Claimant was no longer employed. Mr Feeny argues that, as a continuing member of the pension scheme, the failure to pay the Regulation 12 gratuity to the Claimant is a continuing act of discrimination but I do not accept that submission. The Claimant’s right to any award crystalised at the time it failed to be paid which on my finding was 24 June 2019 (following Miller). Accordingly, I find there was no continuing act. The Just and Equitable Ground[18]I do, of course, have a discretion to grant an extension of time to allow the claim to proceed. Mr Feeny points out, correctly, that two important factors in determining whether to grant such an extension are the length and reason for the delay and prejudice to the Respondent caused by the delay.[19]Unfortunately for the Claimant, I did not find her reasons for the delay to be compelling. Throughout her application for an IOD award, and subsequently, she had the benefit of advice and representation from her Police Federation representatives who, in turn, had access to legal advice. The Claimant’s evidence in relation to her Federation representative was inconsistent and confused. She was unclear as to whether or when either of the two representatives referred to were actually representing her and there was little information as to when those representatives referred her Regulation 12 application to Solicitors.[20]The Claimant says she obtained much of her information from an online forum run by an organisation called the IOD Pensioners Association. She says her first Federation representative would have told her verbally about a Regulation 12 award but she could not remember when. She wrote to Ms Tonks as early 31 July 2019 (page 179) referring to her “query” about a “disablement gratuity” and saying “my husband will be seeking legal advice (for reassurance that what I have received is the correct figure)…” She then rightly refers to the provisions under Regulation 32 relating to a reconsideration of an award but took no steps to seek such reconsideration or appeal against the decision not to make one.[21]At paragraph 17 of her statement, the Claimant says she received her IOD gratuity but no Regulation 12 gratuity. But it was already clear she would not receive the Regulation 12 gratuity because she queried this within days of receiving the IOD award decision. At paragraph 18 she says she “started” to make enquiries with her Federation representative about the Regulation 12 gratuity and left the matter with him. Paragraph 19 notes in essence that nothing then happened for six months until Solicitors were instructed, notwithstanding the Claimant’s evidence that legal advice was to be taken in July 2019 almost a year earlier.[22]I have considered the fact that Ms Tonks, for whatever reason, did not engage with the Claimant’s request for “clarity” or information regarding a Regulation 12 award. I do not, however, consider this to be particularly relevant. Yes, it might show that the first Respondent cannot suffer any prejudice due to this failure but, more importantly, from August 2019 to January 2020, by her own admission the Claimant did nothing to progress her request; nor can she explain why she apparently did nothing for six months thereafter. This was despite having had all the relevant information to hand as to how to appeal or request a reconsideration. As Ms Hodgetts rightly points out, this is the Claimant’s case and the burden rests with her. In failing to take these positive steps open to her, the Claimant has in effect also deprived herself of an argument that the refusal to reconsider or uphold an appeal amounts to a further act of discrimination which sets the time limit clock back to zero.[23]It is also clear that the Claimant failed to promptly take or act on professional advice after she became aware of the decision not to award a Regulation 12 gratuity. Her evidence on what action she personally took or was taken by others on her behalf was inconsistent and became a smoke screen which I could not see through. She had access to the Federation representatives, through them to legal advice and to the IOD Pensioners Association online forum yet still took no action for a year.[24]In deciding whether I should exercise my discretion to extend time in this case, I have considered the judgments in Robertson v Bexley Community Centre T/A Leisure Link [2003] IRLR 434 CA, British Coal v Keeble [1997] IRLR 336 and Southwark London Borough Council v Afolabi [2003] ICR 800, CA. These cases set out that the most relevant factors in determining whether to exercise a discretion to extend time are the length and reasons for the delay and prejudice to the Respondent (Robertson); it may be relevant to consider the factors set out in Section 33 of the Limitation Act 1980 (British Coal Corporation) and there is no need to follow the list of factors strictly which will only be problematic if the Tribunal does not consider a significant factor (Southwark London Borough Council). I have already made reference to the fact that there was a significant delay in this case the cause of which rests with the Claimant who took no action for a significant period of time despite having the benefit of advice from her Police Federation representative, who in turn could access legal advice. I also note that she said she was taking legal advice soon after the decision not to make a Regulation 12 award and then failed to apply for a reconsideration or to appeal the decision. This latter failure on the part of the Claimant leaves the balance of prejudice with the Respondents who were entitled to rely on the failure to appeal or seek a reconsideration as there being no further action to be taken. The delay in bringing the claim would also prejudice the Respondents in terms of cost, time the fading recollections of witnesses and the issues which may arise in potentially having to reconsider medical evidence and obtain further evidence.[25]For the above reasons, I find the Tribunal has no jurisdiction to hear the claim which is dismissed. Consideration of the application for a deposit order by the Respondent is accordingly unnecessary.