Slee v Secretary of State for Justice [2007] EWHC 2717 (Admin)

[2007] EWHC 2717 (Admin)Case No CO/3244/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 November 2007
Before
THE HONOURABLE MR JUSTICE SILBER
Between
DEBRA JANE SLEEAppellantTHE SECRETARY OF STATE FOR JUSTICERespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Joanna Heal (instructed by Radcliffes Le Brasseur) counsel for AppellantPhilip Coppel and Christopher Buttler (instructed by the Treasury Solicitor) counsel for RespondentHearing Hearing date: 27 September 2007
Judgment

I. Introduction

[1]This appeal raises issues on the interpretation and application of the Justices of the Peace Act 1949 (Compensation) Regulations 1978 (“the Crombie Regulations”) as Ms. Deborah Jane Slee (“the claimant”) contends that she is entitled to compensation under these regulations as a result of the re-organisation of Wimbledon Magistrates Court.[2]By a decision dated 5 April 2006, an Employment Tribunal sitting in London held, among other things, that:(a) the claimant had been constructively unfairly dismissed by The Department for Constitutional Affairs (“the respondent”);(b) the respondent had failed to offer to the claimant a suitable and available vacancy following the redundancy of her existing post contrary to regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (“the 1999 regulations”);(c) the claimant suffered a detriment for the reason that she took ordinary maternity leave and additional maternity leave contrary to regulation 19 of the 1999 Regulations;(d) the respondent unlawfully discriminated against the claimant on grounds of her sex; and(e) the claimant’s appeal under regulation 41 of the Crombie regulations failed and was dismissed.[3]The respondent (who is now the Secretary of State for Justice in place of the Department of Constitutional Affairs) appealed to the Employment Appeal Tribunal against decisions (a)-(d) of the Employment Tribunal. Those appeals were dismissed by a division of the Employment Appeal Tribunal over which I presided in a judgment (“the EAT judgment”) which was handed down on 27 September 2007 and which has the neutral citation number UKEAT 03493/06 .This judgment concerns the claimant’s appeal against decision (e) as she contends that she is entitled to both long–term and retirement compensation under the Crombie Regulations.

II. The Background and the Issues

[4]The detailed facts leading to this dispute are set out and can be found in the EAT judgment. I will summarise them in so far as they are relevant to the present appeal. The claimant was employed as a court clerk at Merton Magistrates’ Court from 1 July 1993. (Merton Magistrates’ Court is also known unofficially, but almost invariably, as Wimbledon Magistrates’ Court and I will use that name for it). On 1 July 1994, the claimant was appointed training manager and on 1 July 1996 she became Director of Executive Services, Policy and Training.[5]In 2002 to 2003, the Greater London Magistrates’ Courts Authority, the respondent’s predecessor, proposed a re-structure of the hierarchy of justices’ clerks in which clerks to the Justices were to be replaced by regional managers and deputy Justices’ Clerks were to be replaced by bench legal managers (“BLM”s).[6]The claimant was ring-fenced for a BLM position and she was one of two competitors in Merton Magistrates’ Court for that position. On 2 June 2003, the claimant began a period of sick leave which lasted until 28 February 2004. While the claimant was off sick on 29 June 2003, she assented to the appointment of her competitor to the BLM position at Merton.[7]On 29 February 2004, before the claimant had returned to work after her sick leave, she began a period of maternity leave. On 22 February 2005, the claimant’s employers wrote to her explaining that her former role had been removed from the establishment. They sent a further letter on 22 March 2005 to the claimant explaining what would happen on her return to work. I will have to return to consider the effect of these two letters in paragraphs 14 to 25 below. The claimant was due to return to work on 7 April 2005 but on 6 April 2005 she resigned claiming that she had been unfairly constructively dismissed. As I have explained, this claim, amongst others, was upheld by the Employment Tribunal and the Employment Appeal Tribunal.[8]The basic entitlement provisions under the Crombie Regulations are set out in Part II of them and in particular in regulations 3 to 5. Regulation 3 sets out the persons who can claim compensation while regulation 4 sets out the circumstances in which a party can claim compensation under the Crombie Regulations. The Employment Tribunal held first that pursuant to regulation 3, the claimant was a person to whom the Crombie Regulations applied and second that she had satisfied a further qualifying ground set our in regulation 4 to establish her entitlement to compensation. Both those conclusions are challenged by the respondent in his notice on this appeal[9]The claimant, however, failed in her claim for long-term compensation under Part IV and retirement compensation under Part V of the Crombie Regulations in front of the Employment Tribunal because another of the qualifying conditions (namely that set out in regulation 11 (1) (e) (ii) of the Crombie Regulations) was not satisfied. The claimant on this appeal challenges this finding, which was the reason why the Employment Tribunal rejected her claim to compensation. It is convenient to deal first with the appeal against this finding under regulation 11 (1) (e) (ii) before then considering the respondent’s contentions (which were rejected by the Employment Tribunal) that the claimant is not entitled to make a claim under the Crombie Regulations because her claim does not satisfy the requirements of regulations 3 and 4.[10]I should explain that it is common ground that the submissions on all these issues are the same in respect of the claims for both long-term and for retirement compensation as regulations 3,4 and 11 apply in respect of both these claims (see, for example, regulation 16 (2) of the Crombie Regulations as applying regulation 11 to retirement compensation). Thus identical considerations apply for the purpose of this appeal in respect of both these claims and therefore the claims of the claimant for both long-term and for retirement compensation stand or fall together. III.

(i) Introduction

[11]The conditions for payment of both long-term and retirement compensation for a person who satisfies the eligibility requirements in regulations 3 and 4 are set out in regulation 11 which, insofar as is material, provides (with my emphasis added) that: “(1) Without prejudice to any other requirement of these Regulations, the conditions for the payment of long-term compensation to any person are that- (a)- (d) [not relevant]…….;. (e) if the cause of the claim for compensation is loss of office-(i) the loss has occurred for some reason other than misconduct or incapacity to perform the duties that, immediately before the loss, he was performing or might reasonably have been required to perform; and(ii) he has not, subject to paragraph (2), after he has received from the Magistrates Courts committee either written notice that his office was to be terminated or written notice of termination of his office, been offered in writing any relevant employment which is reasonably comparable with the office he has lost; and (f) [not relevant]……… (2) Regulation 7(3) and (4) (which relate to offers of employment) shall apply for the purposes of this Regulation in ascertaining whether a person has been offered reasonably comparable employment”. (a)- (d) [not relevant]…….;. (e) if the cause of the claim for compensation is loss of office-[12]Sub-paragraph 11(1) (e) (i) is not in issue and the only relevant provision in that regulation relevant to this appeal is 11(1) (e) (ii). Regulations 7(3) and (4) provide that:
“(3) In ascertaining for the purposes of this Regulation whether a person has been offered employment which is reasonably comparable with that which he has lost, no account shall be taken of the fact that the duties of the employment offered are in relation to the administration of a different service from that in connection with which his office was held or are duties which involve a transfer of his employment from one place to another within England and Wales. (4) For the purposes of this Regulation, where the determining authority are satisfied- (a) that acceptance of an offer would have involved undue hardship to that person; (b) that he was prevented from accepting an offer by reason of ill-health or other circumstances beyond his control; or (c ) that, either before the coming into operation of these Regulations or before the employer gave him written notice that his employment was, or was to be, terminated, an offer- (i) has not been accepted by him, and (ii) has lapsed or otherwise terminated, no account shall be taken of that offer.” (a) that acceptance of an offer would have involved undue hardship to that person; (b) that he was prevented from accepting an offer by reason of ill-health or other circumstances beyond his control; or (c ) that, either before the coming into operation of these Regulations or before the employer gave him written notice that his employment was, or was to be, terminated, an offer- (i) has not been accepted by him, and (ii) has lapsed or otherwise terminated, no account shall be taken of that offer.”
[13]In a case, such as the present one, where the only relevant issue is the application of regulation 11(1) (e) (ii), it is necessary to consider:a. if the employee “has received from the Magistrates Courts committee either written notice that his office was to be terminated or written notice of termination of his office”: andb. if So, whether the employee has “been offered in writing employment which is reasonably comparable with the office he has lost” while ignoring the fact that the employment offered represents a transfer within England and Wales; and if so the offer is not to be disregarded for any of the reasons set out in regulation 7(4).[14]The reasoning of the Employment Tribunal was first that the claimant received notice of termination in a letter to her dated 22 February 2005 and second that this satisfied requirement(a) as set out in paragraph 13 above. The Employment Tribunal then concluded that the claimant was offered employment reasonably comparable with the employment she has lost; this meant that requirement(b) in the last paragraph was satisfied when in a letter to the claimant dated 22 March 2005, she was required by the respondent’s predecessor to go to West London Magistrates Court. Finally, the Employment Tribunal concluded that none of the factors set out in regulations 7 (3) and (4) applied with the result that the offer contained in the letter to the claimant dated 22 March 2005 should not be disregarded.[15]The claimant complains that the Employment Tribunal erred in:(1) construing the letter dated 22 February 2005 from Mr Greaves to the claimant as constituting notice of termination of her office for the purposes of regulation 11(1)(e)(ii). The claimant contends that there was never any such notice;(2) construing the letter dated 22 March 2005 from Mr Sullivan to the claimant as constituting an offer of employment for the purposes of regulation 11(1)(e)(ii);(3) concluding that even if the letter of 22 March 2005 was an offer of employment, it contained an offer of employment, which was reasonably comparable with the office that the claimant had lost; and(4) when making its assessment that the employment was reasonably comparable with the office the appellant held, taking account of matters that were not included within the letter of 22 March 2005. (ii) Was the letter of 22 February 2005 a notice of termination as provided for in regulation 11(1) (e) (ii)?[16]Miss Heal counsel for the claimant contends that the letter of 22 February 2005 was not a “written notice that that [the claimant’s] office was to be terminated or written notice of termination of his office” as prescribed in regulation 11(1) (e) (ii). This letter stated that:
“Your former role was subsequently removed from the reestablishment of the court as a result of the reorganisation subsequent to the appointment to the bench post. It remains the position of the Authority that it is likely to be able to find you appropriate employment commensurate with your former role”
[17]The case for the claimant is that notice under regulation 11(1) (e) (ii) had to specify a date from which the loss of office was to take effect. Miss Heal relies on the observation of Widgery J when giving the judgment of the Divisional Court in Morton Sundour Fabrics v Shaw (1966) KIR 1 at page 4 when he stated that:
“…there are certain formalities about the type of notice necessary to determine a contract of employment. The notice may be a peremptory notice, sometimes referred to as a dismissal without notice, but if it is to operate on a future day, the notice must specify that date , or at least contain facts from which that date is ascertainable.”
[18]It is noteworthy that the Morton case was dealing with different legislation (Redundancy Payments Act 1965 section 3) from the present case and it, unlike regulation 11 (1)(e) (ii), does not refer to “written notice of termination of his office”. What is particularly significant is that the requirements under regulation 11(1) (e) (ii) of the Crombie Regulations unlike the Redundancy Payments Act 1965 can be satisfied by a notice that an office had been terminated. The wording of the alternative condition for qualification in regulation 11(1) (e) (ii) (“written notice that that [the claimant’s] office was to be terminated or written notice of termination of his office”) shows that it could be satisfied not only by a prospective notification of termination but also by a notice recording that an office had been or was being terminated. If this was not so, the strange result would be that the words “written notice of termination of office” would have no separate meaning from the future termination envisaged by the words “written notice that that [the claimant’s] office was to be terminated”[19]No valid or cogent reason has been put forward to show why a statement of the kind set out in the letter of 23 February 2005 and quoted in paragraph 16 above showing that there had been a termination cannot satisfy regulation 11(1)(e)(ii). I therefore conclude that as a matter of construction that this letter amounted to “written notice that that [the claimant’s] office was to be terminated or written notice of termination of his office”. (iii) The letter of 22 March 2005[20]The Employment Tribunal found that this letter showed that, in the words of regulation 11(1) (e) (ii) (with my emphasis added), the claimant had “been offered in writing any relevant employment which is reasonably comparable with the office he has lost”.[21]The letter which was written by Mr Sullivan of the respondent to the claimant instructing her to report to West London Magistrates’ Court on 7 April where she would be introduced to Mr Vantyghem, the Regional Justices’ Clerk, and also to the BLM there. Mr Sullivan in his letter said that:(a) the claimant would be line managed by the BLM with Mr Vantyghen monitoring the situation;(b) the claimant would be there for twelve weeks in the first instance providing additional management support to the BLM and that involved specifically project work with the Drug Pilot Court;(c) during the first two weeks at West London Magistrates’ Court , an assessment would be made in relation to any training or development needs of the claimant and the programme set out accordingly;(d) six weeks into her role there, the claimant would be interviewed and assessed as to her suitability for a BLM role and if successful the respondent would need to consider what vacancies were available in London and across the country;(e) at the time of writing that letter, there were no available BLM posts in the South West of London area; and(f) if the claimant was unsuitable for the BLM role, the respondent would through protocol identify a suitable and alternative employment based on the claimant’s former role at Wimbledon.[22]Miss Heal contends that the letter of 22 March 2005 does not show that the claimant has in the words of regulation 11(1) (e) (ii) “been offered in writing any relevant employment which is reasonably comparable with the office he has lost”. Her first point was that the letter does not contain an offer but that it constituted an instruction to the claimant.[23]Mr. Coppel counsel for the respondent disagrees and he contends that the letter has to be considered in the context of the Crombie Regulations as a whole and their purpose. I have come to the clear conclusion that the letter constitutes an instruction and therefore it is not an offer in the light of the wording of the letter, which:(a) starts by stating that the writer sees the purpose of the letter as being “to outline the process for your return”;(b) then proceeds to say that “on Thursday 7 April you will report to West London Magistrates Court”;(c) also states that” six weeks into your return you will be interviewed and assessed as to your suitability for a BLM role”; and it(d) concludes by saying that “I trust that this is helpful to you and I look forward to your return to work”. 24A. What is striking about this letter is that the claimant was being instructed as to what she was required to do and she was not being asked to agree to something. It is an essential feature of the requirement that a person has “been offered in writing any relevant employment which is reasonably comparable with the office he has lost” thatthe recipient of the communication (who in this case was the claimant) is given a choice as to whether to accept the offer. 24B. The Shorter Oxford English Dictionary states that the meanings of the word “offer” include “to tender for acceptance or refusal” and “to make a proposal, to suggest, to propose or express one’s willingness (to do something) conditional on the assent of the person addressed”. In each of these definitions the recipient of the offer is not being instructed to do something but instead is being given a choice. In the present case, the claimant was being instructed and was not given any choice with the consequence that if she had not followed what was said in the letter of 22 March 2005, she would have been liable to have been treated as having acted in breach of an instruction from her employer. 25A. So the claimant has not been “been offered in writing any relevant employment which is reasonably comparable with the office he has lost”. This means that I am unable to agree with the conclusion of the Employment Tribunal that the claimant’s claim under the Crombie Regulations must be dismissed because regulation 11(1)(e) (ii) precludes her claim under those regulations. 25B. I should add that if I had concluded that the letter of 22 March 2005 had contained an offer of employment, my view is that it was not “reasonably comparable with the office [the claimant] has lost” for two reasons. The first reason was that the scheme contained in the letter of 22 March 2005 had serious limitations which are set out in paragraph 85 of the EAT judgment which mean that it was not “reasonably comparable with the office [the claimant] has lost”. In essence, whereas under the claimant’s previous office in which she held the office of justices’ clerk, under the terms of the letter of 22 March 2005 (the details of which are set out in paragraph 25 above) the claimant was effectively been told first that she was being placed under the control of somebody who would have held the position which she previously held and second that the job she would ultimately be offered would depend on an assessment. In other words, she was being offered a position which was inferior to the office which she had held before without any certainty or even probability that she would obtain the same employment at then end of the assessment process. For those reasons, even if the respondents had, contrary to my submissions, made an offer to the claimant, that offer was not “reasonably comparable with the office [she] had lost”. 25C. A second reason why even if the respondents had, contrary to my submissions, made an offer to the claimant in the letter of 22 March 2005, the terms of this offer was not “reasonably comparable with the office [she] had lost” is that the offer in that offer was a result of sex discrimination and also constitutes a breach of the respondent’s obligations under regulation 19 of the Maternity and Parental Leave etc Regulations 1999. As I explained in paragraphs 2 (c) and (d) above, the Employment Tribunal upheld complaints to that effect by the claimant and this appeal by the respondents against those findings was dismissed by the Employment Appeal Tribunal for the reasons explained in paragraphs 79 to 94 of the EAT judgment. The significance of those findings is that an offer which is the result of sex discrimination by an employer and which constitutes a breach of a statutory obligation by the employer does not satisfy the test of being “reasonably comparable with the office [she] had lost”.[26]Thus on the regulation 11 issue, I conclude that the claim of the claimant under the Crombie Regulations does not fail because of regulation 11(1)(e)(ii) because first the claimant was not “offered in writing any employment” as she was instructed what her employment was to be and she did not receive an offer(see paragraphs 20 to 24 above), and second even if the claimant had been offered employment, it was not for two reasons “reasonably comparable with the office [the claimant] has lost” (see paragraph 25(B) and (C) above). I must now proceed to consider the respondent’s further submissions that the claimant cannot satisfy the requirements in regulations 3 and 4 of the Crombie Regulations and so she cannot pursue a claim under them.

(i) Introduction

[27]The case for the respondent is that the claimant did not suffer a loss of office within the meaning of regulation 4 of the Crombie Regulations at a time when she would have been entitled to make claims for long-term compensation or retirement compensation under those regulations.[28]This entails consideration of the term “material date”. Regulation 2 (1) states in so far as is relevant to this appeal that “material date” means: “(a) …….; and (b) in relation to a person who has suffered such loss or diminution which is attributable to one of the events specified in paragraphs (b) or (c) of Regulation 4(1), the date on which the event occurred”.[29]Regulation 4 sets out the circumstances in which a person to whom the Crombie Regulations applies is entitled to have his case considered for the payment of compensation under these Regulations. So far as is relevant, it provides with my emphasis added that: “(1) Subject to the provisions of these Regulations, any person to whom these Regulations apply and who, on or after the coming into operation of these Regulations suffers loss of office or diminution of emoluments which is attributable to- (a)……. (b) the grouping of clerkships under a Justices’ Clerk under Part 111 of the [Justices of the Peace Act 1949], or (c) …….., shall be entitled to have his case considered for the payment of compensation under these Regulations and such compensation shall be determined in accordance with these Regulations”.[30]The Employment Tribunal considered that the “material date” under the Crombie Regulations was on about 1 July 2003 because this was “the date on which Mr. Nicholson was appointed to the post of BLM, and in effect the claimant’s post was deleted” (paragraph 1.9 of the Reasons) . Regulation 4 requires consideration of(i) whether the claimant did “suffer… loss of office”, (ii)whether any such “loss of office was attributable to … the grouping of clerkships under a justices’ clerk …” and, if so, (iii) whether such grouping occurred “…under Part III of the [Justices of the Peace] Act [1949]”. The reasoning of the Employment Tribunal on the regulation 4 issue was that: “16.4 …There was the Claimant’s loss of office ,i.e. the deletion of her post in June/July 2003, which came about because of a reduction in number of justices’ clerks or the grouping of clerkships from 31 to 6 justices’ clerks in the London area. There was no clerk thereafter at Wimbledon, ad therefore no office of a clerk to assist in that court. The [Magistrates’ Court Committees] were grouped into the {Greater London Magistrates Court Authority] and five regions in London. Thereafter ,there was a regional justices’ clerk for the South West area and the appointment of [BLMs]- all this reorganisation being inter-dependent and caused by the grouping of clerkships, and directly leading to the Claimant ceasing to assist the office of the holder of justices’ clerk and the loss of her post”(ii) Did the claimant suffer “loss of office”?[31]The case for the respondent is that the claimant did not suffer “loss of office” on 1 July 2003 as she remained in office until she tendered her resignation on 6 April 2005 and that this meant that she did not “suffer… loss of office” with the meaning of regulation 4.[32]The Crombie Regulations distinguish between the role of a person who is “employed” and “the holder of the office of justices’ clerk”. This distinction is shown, for example, in regulation 3 which is set out in paragraph 40 below. In consequence, the mere fact that a person who has been a justices’ clerk continues to be employed in another capacity does not mean that he or she has not suffered “loss of office”. In other words, there is a distinction between the two roles.[33]On the facts of the present case, it is clear that the claimant continued to be employed by the respondent’s predecessors until 2005 but that does not mean (as is the case) that she had not suffered “loss of office” at an earlier date. The claimant contends that the Employment Tribunal was correct in holding that this occurred on about 1 July 2003 because this was “the date on which Mr. Nicholson was appointed to the post of BLM, and in effect the claimant’s post was deleted” (paragraph 1.9 of the Reasons).[34]In my view, this finding is correct because the BLMs were entrusted with the task of running the legal service of the court such as providing legal advice to the Bench, maintaining the court registers and delivering the training for justices. The Balms replaced the previous system of having one justices’ clerk for each magistrate’s court, which was the system which had been in force at Wimbledon Magistrates Court. This meant that the claimant’s office as justices’ clerk disappeared when the new BLM system was introduced at that court and Mr. Nicholson rather than the claimant obtained that position. So it follows that it was then that the claimant suffered a “loss of office”. Furthermore, in any event, the Employment Tribunal was the designated fact- finder and an appeal against their decision can only be brought on an issue of law. Thus I can only interfere with that conclusion if there is an error of law and no such error has been shown in this conclusion or the reasoning of the employment tribunal. (iii) Was the claimant’s “loss of office … attributable to … the grouping of clerkships under a justices’ clerk …”?[35]In order to come within regulation 4, it is necessary to show that the claimant’s “loss of office was attributable to … the grouping of clerkships under a justices’ clerk under Part III of the [Justices of the Peace] Act [1949]” Mr. Coppel initially accepted thatthere had been a regrouping by mid-2003 but he later said that there had been staff changes by then. It must not be forgotten that in their letter to the claimant of 22 February 2005, the claimant’s employers told her that: “Your former role was subsequently removed from the reestablishment of the court as a result of the reorganisation subsequent to the appointment to the bench post”.[36]As I have explained in paragraph 5 above, a new scheme changing the hierarchy of justices’ clerks was proposed and enacted by which there was a restructuring of the magistrates’’ court authority with a reduction in the number of regional justices’ clerks from 31 to 6.The justices’ clerks were to be replaced by regional mangers and deputy justices’ clerks by BLMs, who would head up each magistrates’ court clerk/ administration team. In other words this was a grouping of clerkships under a justices’ clerk because, as I have already explained in paragraphs 5 and 6 above, this new system entailed replacing the individual justices’ clerks with the BLMs, who became the superiors of the remaining justices’ clerks like the claimant. None of the submissions of the respondent on this issue show this conclusion to be wrong as a matter of law with the consequence that no appeal can be brought against this finding of fact. (iv) Was such grouping carried out “…under Part III of the [Justices of the Peace] Act [1949]” ? 37A. Part III of the Justices of the Peace Act 1949 contained provisions in section 19(1) that “justices’ clerks shall be appointed by the magistrates’ courts committee and would hold office under the pleasure of the committee”. Thus the issue is whether any regrouping was carried out by the appropriate magistrates’ courts committee. As a result of the amendments to the 1949 Act made by Part V of the Access to Justice Act 1999, a body corporate known as the Greater London Magistrates’ Court Authority was established and with effect from 1 April 2001 it became the magistrates’ court committee for Greater London which included Wimbledon . As I have explained in paragraph 5 above, this authority was responsible for the arrangement by which regrouping occurred. 37B. Mr. Coppel contends that the Employment Tribunal did not expressly state or hold that the grouping was “under Part III of the [Justices of the Peace] Act [1949]”. He is correct in this submission but it must be stressed that it is common ground that the issue was not raised before the Employment Tribunal as to whether the regrouping, which took place, was under the 1949 Act or under any other provision. This issue cannot be raised now as it was not raised in front of the Employment Tribunal, which was the designated fact-finder on this and all other issues. I do not understand how it can now be argued that the employment tribunal erred in law on this issue when it was not raised when it could and should have been raised if this point had any validity. I should stress that I have no reason to believe that there is any validity in this point because the regrouping was carried out at the instigation of the appropriate magistrates’ court committee as I explained in paragraph 37 A above and so fell within the scope of regulation 4. 37C. In any event in my view, it is important to bear in mind that the Employment Tribunal’s decisions should not be subjected to the degree of scrutiny reserved for judgments of High Court judges. This factor and the absence of any suggestion before the Employment Tribunal that the grouping could have been done pursuant to any other legislation or indeed any other basis has led me to the conclusion that the grouping was carried out under the 1949 Act .[38]After I had reached that conclusion, I came across two passages in a Court of Appeal’s judgment in the case of Retarded Children’s Aid Society v Day [1978] ICR 347 which supports this approach to this issue especially as there was no dispute on this issue. First, Lord Denning M.R.( with whose judgment Lord Russell of Killowen and Eveleigh LJ agreed) explained in his judgment at page 443G about an issue which was not specifically referred to by an Employment Tribunal in its reasons that :
“So, reading between the lines, it seems to me that, although not stated explicitly in the reasons, the tribunal very probably did have all the considerations in mind which it is suggested they may not have had”
[39]Second, in the same case, Lord Russell of Killowen said at page 444D that “I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point ...has overlooked it…” Both of these statements satisfy me that the Employment Tribunal’s conclusion was that the claimant’s “loss of office was attributable to … the grouping of clerkships under a justices’ clerk under Part III of the [Justices of the Peace] Act [1949]”. Thus I reject all the respondent’s submissions that the claimant is disqualified from making a claim by reason of regulation 4 of the Crombie Regulations essentially because as the Employment Tribunal found::(a) there had been a radical change in the structure and hierarchy of magistrates’ clerks which meant that the claimant was no longer working as she had been previously under the clerk to the justices and the deputy clerk justices both of whom were assigned to Wimbledon;(b) under the new structure there would be a reduction of the justices clerks with the introduction of a new higher level of regional justices clerks in Greater London of whom there would be six with the result that there would not be one solely assigned to Wimbledon, where instead there would be a BLM for each court ;(c) there would therefore be a new grouping of justices clerks in Wimbledon and other courts under one of the 6 regional justices clerks;(d) the claimant would cease to have the office of justices’ clerks which she had enjoyed previously as a result of this new grouping;(e) this grouping was carried out by the appropriate magistrates court committee and the Employment Tribunal regarded the regulation 4 requirement as satisfied and it was not suggested in front of them that it occurred otherwise than under the 1949 Act; and(f) there is no error of law in the reasoning or conclusions of the Employment Tribunal I consider this case to be the kind of situation for which regulation 4 (1) (b) was drafted.

(i) The approach of the Employment Tribunal

[40]Regulation 3 of the Crombie Regulations provides insofar as is material (with my emphasis added) that: “(1) These regulations shall apply to any person who-(a) held the office of Justices’ Clerk on 2 February 1995 and continues to hold such office immediately before the material date; or(b) was employed in assisting the holder of the office of Justices’ Clerk in the performance of the duties of that office on 2 February 1995 and either- (i) remains so employed, or (ii) left that employment to hold office as Justices’ Clerk and continues to hold such office, immediately before the material date. (i) remains so employed, or (ii) left that employment to hold office as Justices’ Clerk and continues to hold such office, immediately before the material date.[41]It is common ground between counsel that paragraphs (a) and (b) (ii) did not apply to the claimant. The claimant did, however, contend that she had been in the words of paragraph (b) (ii): “employed in assisting the holder of the office of justices’ clerk in the performance of the duties of that office on 2 February 1995 and … remained so employed... immediately before the material date”.[42]The Employment Tribunal found in paragraph 16.3 of its reasons that: “16.3. We conclude that, per regulation 3(1)(b)(i), the claimant was a person to whom the Regulations applied, as she was employed in assisting the holder of the office of justices’ clerks in the performance of the duties of that office on 2 February 1995 and remained so employed immediately before the material date The claimant was exercising certain delegated powers of Mr Packer before February 1995, and de facto was exercising the judicial powers of the justices’ clerk as set out in the list of powers that we have seen. She gave advice to magistrates on legal matters, a key part of the justices’ clerk’s function. Later, as part of a senior management team, in Mr Packer’s frequent absences, Mr Nicholson and she effectively deputised for him all aspects of his duties and powers. Further delegated powers were given to her. She continued to exercise these powers and carry out these duties, assisting Mr Packer in the office of justices’ clerk, until she went on sick leave in June 2003, and would have continued with these duties etc up until immediately before the material date if she had been well enough to return to work”. (ii) The submissions[43]Mr Coppel submits that the Employment Tribunal erred in reaching that conclusion because the claimant was not a person who, within the meaning on Regulation 3 (1) (b) of those Regulations was employed in assisting the holder of the office of justices’ clerk in the performance of the duties of that office on 2 February 1995 nor did she remain so employed immediately before “the material date”.[44]Although Miss Heal disputes that contention, it is common ground between counsel that to qualify under the Crombie Regulations, the employment of the claimant had to be wholly or predominately devoted to providing assistance to the holder of the office of justices’ clerks if it was to fall within regulation 3 (1) (b).[45]Indeed in Berkshire and Oxfordshire MCC v Gannon & another[2000] ICR 1003 Carnwath J explained that this was the meaning of that regulation when he said that: “21. …. Is it sufficient that assisting the justices’ clerk should be ‘an appreciable (as opposed to insignificant or negligible’) feature of the employment, as the tribunal concluded? Or is Mr Lynch right in submitting that the employment must be wholly or predominately devoted to providing such assistance?..[23]In my view Mr Lynch is correct on this issue. The words of regulation 3(1) itself are ambiguous. I accept that a person, only part of whose duties consist of assisting the justices’ clerk, could still properly be said to be ‘employing in assisting’ him. However, the context is of an employment which is comparable to that of the office of justices’ clerk. That is much more readily understandable in relation to someone whose main job is to assist the clerk, rather than someone who merely spends part of his time assisting the clerk”.[46]I respectfully agree with that approach which is consistent with the requirement for the person concerned to be “employed in assisting the holder of the office of justices’ clerk in the performance of the duties of that office”. Bearing in mind the very substantial benefits which are given to those entitled to claim under the Crombie regulations, three conclusions can be drawn concerning the degree of assistance given to the justices’ clerk that an applicant has to show before he can make a claim under them. First, the purpose of this provision is to ensure that a person who is spending all or nearly all of his or her time assisting the justices’ clerk in performing these functions should be entitled to the same benefits as somebody who does that work and has the job title of justices’ clerk. Second to qualify under the regulations, such an applicant has to be more or less performing the tasks of the justices’ clerk even though he or she does not have that job title and nothing less will qualify under regulation 3. Third, it cannot be right that the benefits under the regulations should be conferred on somebody who is only performing some of these functions while the majority of his or her work is spent performing duties other than assisting the clerk. 47 The approach of the Employment Tribunal was that the critical factor was that claimant was exercising certain dedicated power of Mr Packer who was the justices’ clerk. The Employment Tribunal then explained that the claimant was ‘de facto... exercising judicial powers of the [Justices’ Clerk]”. It was also pointed out the claimant having given advice to Magistrates on legal matters which were described by the Employment Tribunal as “a key part of the Justices’ Clerks function”. So the Employment Tribunal concluded that the claimant and another clerk (Mr Nicholson) “effectively deputised the Justices’ Clerk in all aspects of his duties and powers”. It is clear from the findings of the Employment Tribunal that Mr Packer held two offices at the Magistrates' Court at Wimbledon being both the justices’ clerk and justices’ chief executive and the Crombie regulations only relate to the former functions. (iii) Discussion[48]The task for the Employment Tribunal was in the light of the approach described by Carnwath J to identify which of Mr Packer’s duties related to each of those activities and then to determine whether the claimant’s employment was in the words of Carnwath J “wholly or predominantly devoted to provide such assistance” to the duties of Justices’ Clerk rather than Justices’ Chief Executive. It must be stressed that this exercise had to be considered as at both 2 February 1995 and at the “material date” and that it required determining whether the claimant’s employment was wholly or predominantly devoted to providing such assistance.[49]To carry out the exercise the Employment Tribunal had to consider at both 2 February 1995 and at the “material date”:(a) what the claimant did which was providing assistance to the holder of the office of justices’ clerks in the performance of the duties of that office but also(b) what other duties the claimant performed or was required to perform and then(c) whether the claimant’s employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices’ clerks in the performance of the duties of that office in the light of the proportion of work which constituted assistance to the holder of the office of justices’ clerks in the performance of the duties of that office to the other duties the claimant performed or was required to perform.[50]In other words, the tribunal had to decide at both these dates not merely whether the claimant was providing some assistance to the holder of the office of justices’ clerks in the performance of the duties of that office but also determine whether the claimant’s employment was wholly or predominantly devoted to such duties. It was important that the employment tribunal should explain that it had adopted this approach of considering these stages and not merely of asking if the claimant had performed some duties of providing some assistance to the holder of the office of justices’ clerks in the performance of the duties of that office. (iv) Conclusions on the regulation 3 issue 51 I appreciate that the employment tribunal stated, as I have explained in paragraph 42 above, that “We conclude that, per regulation 3(1) (b) (i), the claimant was a person to whom the Regulations applied, as she was employed in assisting the holder of the office of justices’ clerks in the performance of the duties of that office on 2 February 1995 and remained so employed immediately before the material date”. The employment tribunal then went to give its reasons, which seemed to suggest that merely assisting the holder of the office of the justices’ clerk in the performance of such duties was sufficient for the purposes of satisfying regulation 3(1) (b) without also ever considering what proportion of the claimant’s duties were devoted to this assistance. It seems that they did not appreciate that it had to consider in the words of Carnwath J whether the claimant’s employment was “wholly or predominantly devoted to provide such assistance” to the duties of justices’ clerk of Mr. Packer rather than in his role as the justices’ chief executive. Indeed there is nothing in the employment tribunal’s reasoning which shows that the employment tribunal applied the approach explained in the Berkshire case. For the purpose of completeness, I should add that I appreciate that a court should approach the reasoning of an employment tribunal in the way which I have explained in paragraphs 38 and 39 above. It is however of crucial importance to note that the Crombie regulations are not material of which the employment tribunal was likely to have much experience. Thus it cannot be assumed that in Lord Denning’s words “reading between the lines” the employment tribunal were familiar with and or applied the test laid down in the Berkshire case. 52 So I have come to the conclusion that the Employment Tribunal did not carry out the exercise properly mainly because they did not out carry out stages (b) and (c) to which I referred in paragraph 49 above. I suspect that this was because their attention had not been directed to the Berkshire judgment which I have quoted in paragraph 45 above and so they cannot be criticised for this error. The matters which the employment tribunal did not appear to have considered or that there was a substantial risk that they did not consider were that it:(a) did not appear to decide how often at each of the two relevant dates the claimant was required to deputise for Mr Packer and to distinguish between the duties of Mr Packer as justices’ clerk and as justices’ chief executive when it concluded that she effectively deputised for him in their words in “all aspects of his duties and powers”;(b) failed to consider at each of the two relevant dates what duties the claimant performed or was required to `perform other than providing assistance to the holder of the office of justices’ clerks in the performance of the duties of that office. This was required under stage (b) which I set out in paragraph 49 above;(c) appeared to consider that they only had to consider whether the assistance to the justices’ clerk was appreciable and not negligible. It will be recollected that Carnwath J specifically rejected this approach in his judgment in the Berkshire case which I quoted in paragraph 45 above; and(d) omitted to decide at each of the two relevant dates at stage (c) which I set out in paragraph 49 above, the critical question of whether the claimant’s employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices’ clerks in the performance of the duties of that office in the light of the proportion of work which constituted assistance to the holder of the office of justices’ clerks in the performance of the duties of that office to the other duties the claimant performed or was required to perform .[53]The reasons of the Employment Tribunal do not unfortunately contain the necessary findings which would enable me to determine the issue as it ought to have been considered. To avoid the risk of injustice, I am obliged to remit this case to an Employment Tribunal. VI Conclusion[54]For the reasons which I have sought to explain, I am unable to agree that regulation 11 precludes the claim under the Crombie regulations but the claimant is entitled to succeed in her claim under the Crombie Regulations only if that she can satisfy regulation 3. I have no idea whether she will be able to satisfy that substantial task.[55]When I circulated the draft of this judgment to counsel, I asked for their views as to whether this matter should be remitted to the same Employment Tribunal or to a different one. Miss Heal submitted that it should be remitted to the same employment tribunal while Mr. Coppel submitted that it should be remitted a different tribunal. Not surprisingly both counsel relied on statements of the Employment Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR to support their submissions.[56]I accept the submissions of Miss Heal that the Employment Tribunal in this case has produced a careful judgment and that it has gone about its duty in a professional way. She also relies on the relevant and important statement of Burton P that “46.4... In the balance with all the above factors, the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission.”[57]There are important countervailing submissions of which the first is that the Tribunal service has informed the respondent’s solicitors that, if the rehearing were listed immediately, the earliest date on which the same Tribunal could rehear the claim would be in January or February 2008, which would be about two years after the original hearing. In the light of the length of this period, the Tribunal which heard the original claim would have little advantage over a freshly constituted tribunal especially as there are agreed notes of the evidence at the first hearing.[58]The second countervailing factors is that the question to be remitted (viz. what tasks the appellant performed on 2 February 1995 and at the material date, and whether they were wholly or predominately devoted to assisting the Justices Clerk) is both narrow and discrete from the majority of the evidence which was heard by the original tribunal. The evidence which the employment tribunal heard concerning the claim for constructive unfair dismissal and the other issue before itwould not assist in determining the question to be remitted. Any tribunal would need to hear evidence on the remitted question. So there would be little advantage in remitting this case to the same Employment Tribunal.[59]The third and crucial countervailing factor is that this is an old claim which should be resolved as soon as possible and it would obviously be possible to obtain an earlier hearing date in front of any Employment Tribunal rather than the three members of the original Employment Tribunal In those circumstances, I have concluded that the need for this matter to be resolved speedily together with the factors set out in paragraphs 57 and 58 above satisfy me that this matter should be remitted to a differently constituted Employment Tribunal but I stress that this decision is not any form of criticism of the Tribunal which originally dealt with this matter..[60]I should also record that I also received written submissions on costs with the claimant seeking an order that she receives two-thirds of her costs while the respondent’s case is that there should be no order costs. Having considered all the relevant matters including the fact that the respondent lost on two out of the three issues but succeeded on one issue, I have concluded that the respondent should pay one-third of the claimant’s costs. Finally I must express my gratitude to all counsel for their assistance in this case. NOTE ON THE APPLICATION FOR PERMISSION TO APPEALa. A. The respondent sought permission to appeal on the regulation 11 and on the regulation 4 issues and it was agreed that I should deal with this application on paper.b. B. This is a second appeal with the first appeal being the appeal to me and so the permission of the Court of Appeal is needed for this appeal (see CPR Part 52.13(1) ) .So I have refused permission to appeal as I have no power to grant it.c. C. In case I am wrong and I am entitled to consider whether permission to appeal should be granted, I would have refused it as:(i) the claimant is not precluded from claiming under the Crombie Regulations because of regulation 11(1)(e)(ii) because first the claimant was not “offered in writing any employment” as she was instructed in the letter from the respondents of 22 March 20005 as to what her employment was to be and so she did not receive not been “offered… any employment” (see paragraphs 20 to 24 above), and second even if the claimant had been offered employment, it was not for two reasons “reasonably comparable with the office [the claimant] has lost” (see paragraphs 25(B) and (C) above);(ii) the claimant qualifies under regulation 4 of the Crombie Regulations as she lost office as a result of the grouping of clerkships under a justices’ clerk under Part III of the Justices of the Peace Act 1949 (see paragraphs 27 to 39 above);(iii) none of the grounds of the respondent reach the threshold necessary to obtain permission to appeal; and(iv) the issues raised on this appeal are totally fact sensitive and determination of them would not be of any assistance in determining future claims under the Crombie Regulations. The resolution of the regulation 11 issue depends on the construction of a letter of 22 March 2005 and the terms contained in it. The regulation 4 issue requires consideration of the application of the regulation to the state of affairs in Wimbledon Magistrates Court. Neither issue requires resolution of a dispute on the construction of either or any regulation.

Cited in 1 later judgment