MR A J ENGEL v MINISTRY OF JUSTICE AND DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT [2016] UKEAT 0337_15_3008

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2016] UKEAT 0337_15_3008Case No Appeal No. UKEAT/0337/15/LA UKEAT/0150/16
Between
MR A J ENGELAPPELLANTMINISTRY OF JUSTICE AND DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENTRESPONDENT
Before
His Honour Judge David RichardsonDate 30 August 2016
[1]APPEARANCES For the Appellant MR ANTHONY JOHN ENGEL (The Appellant in Person) For the Respondents MR CHARLES BOURNE (One of Her Majesty's Counsel) and MS RACHEL KAMM (of Counsel) Instructed by: Government Legal Department One Kemble Street London WC2B 4TS SUMMARY PART TIME WORKERS PRACTICE AND PROCEDURE - Case management The Employment Judge did not err in law in his application of Regulation 5(2)(a) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 . The Employment Judge did not err in law in refusing the Claimant's application under Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 . HIS HONOUR JUDGE DAVID RICHARDSON Introduction These appeals are concerned with the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the 2000 Regulations"). It is helpful to have in mind from the outset the terms of Regulation 5, which provides, so far as material to this appeal, as follows:
"(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker - (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if - (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds. (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate."
Central to these appeals is Regulation 5(2)(a), which provides that the right conferred by Regulation 5(1) applies only if the less favourable treatment is "on the ground that the worker is a part-time worker".[2]The 2000 Regulations were enacted to implement the Part-Time Workers Directive 1997 97/81/EC (hereafter "PTWD"). This confirmed a framework agreement on part-time work concluded by social partners. The framework agreement provided as follows:
"Clause 4: Principle of non-discrimination 1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply. 3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice. 4. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4.1."
[3]I am concerned with two Judgments of Employment Judge Macmillan sitting in the London (Central) Employment Tribunal dated respectively 27 May 2015 and 26 June 2015. I shall first explain the procedural background to these Judgments. I shall then deal in turn with each Judgment and appeal. The Procedural Background[4]The decision of the Supreme Court in O'Brien v Ministry of Justice [2013] ICR 499 paved the way for part-time Judges to make claims under the 2000 Regulations . Such claims have been allocated in the Employment Tribunal to Employment Judge Macmillan. He has sat in the London (Central) Employment Tribunal to hear a wide variety of issues. Although O'Brien itself was concerned with pension provision, in principle part-time Judges can claim in respect of other kinds of less favourable treatment.[5]This case is concerned with part-time judiciary in the former Residential Property Tribunals Service ("RPTS"). There were Vice-Presidents, who had a degree of managerial responsibility, Legal Chairs and Valuer Chairs. Claims have been contested not only in respect of pension but also in respect of daily fee writing and fees for decision writing and related work. They are brought against the Ministry of Justice ("the Respondent") which has taken over responsibility from the original sponsoring Department. Mr Anthony John Engel, the Claimant, was a Legal Chair between 1999 and 2014.[6]By a Judgment dated 13 March 2014 Employment Judge Macmillan decided that the work of Valuer Chairs was broadly similar to that of Judges of the Tax Chamber of the First Tier Tribunal. It was accepted by the Respondent that this decision applied equally to Legal Chairs. It was further accepted in principle that the claims in respect of pension for Valuer Chairs and Legal Chairs succeeded. The Respondent does not resile from that position, although there is an issue as to the appropriate remedy in respect of that finding (see the Judgment of Laing J in Ministry of Justice v Edge and Burton UKEAT/0247/15, 19 February 2016). The point, as I understand it, is that the Chairs would not in any circumstances have received a pension under the judicial scheme but rather by other arrangements or under another scheme.[7]This, however, left other issues to be determined. So far as Vice-Presidents were concerned, liability remained entirely in issue. Their work was rather different from that of Valuer Chairs and Legal Chairs. So, the Judgment dated 13 March 2014 did not resolve the comparator issue for them. So far as Legal Chairs and Valuer Chairs were concerned, there were issues concerned with the amount of daily fee and with fees for decision writing and related work. The Claimant sought to bring claims in respect of both of these matters.[8]A Preliminary Hearing for case management took place on 15 May 2014. The Employment Judge selected lead claims to be heard. In respect of the amount of daily fee the case of Mrs Frances Burton was to stand as lead claim. In respect of fees for decision writing and related work, the cases of Mrs Burton and the Claimant were to stand as lead claims. At that hearing the Respondent's counsel said that the Respondent wished to argue that any shortfall in the daily fee "was not attributable to the part-time status" of the Valuer Chairs and Legal Chairs and in consequence did not breach the 2000 Regulations (see paragraph 3 of the Employment Judge's summary and Order dated 3 June 2014).[9]I am not in this appeal concerned with the case in respect of fees for decision writing and related work. It suffices to say that Employment Judge Macmillan heard it in October 2014; the Claimant and Mrs Burton met with a measure of success; and appeals by the Respondent to the Employment Appeal Tribunal and Court of Appeal have been dismissed.[10]The other cases that I have mentioned - the claims of Vice-Presidents in all respects and the claims of Valuer and Legal Chairs in respect of daily fee - came before the Employment Judge at a further Preliminary Hearing on 13 October 2014, when the final hearing was postponed to May 2015. It is sufficient to mention two points that arise out of this hearing. First, the reason for any less favourable treatment was clearly identified as an issue to be determined in both categories of case (see the agreed list of issues recorded in the Employment Judge's summary). Secondly, the Claimant was aware of the outcome. On 23 October, during the decision writing case, he applied to be joined with Mrs Burton as a lead in respect of the daily fee, saying that he "wanted to be kept aware and involved in case I have something to add". The Employment Judge refused the application, saying that he could be a spectator and could ask to be informed. The refusal does not seem to have been the subject of a formal Order, and, as I shall explain, was subsequently forgotten by the Claimant and perhaps by the Employment Judge as well. The Judgment Dated 27 May 2015[11]Between 5 and 14 May 2015 the Employment Judge heard the lead claims of the Vice-Presidents of the RPTS and the lead claim of the Valuer and Legal Chairs in relation to daily fee. Both sides were represented by counsel. The Employment Judge reserved judgment. In his Reasons he dealt first with the comparator issue concerning the Vice-Presidents. He heard that their role was broadly similar to that of other categories of Tribunal Judge (see paragraphs 14 to 33 of his Reasons). He then turned to the "reason why" issue, which applied both to Vice-Presidents and to the daily fee issue concerning Valuer Chairs and Legal Chairs.[12]The Respondents' argument was that there was no connection between any less favourable treatment and the part-time status of the Judges concerned. Rather, the Respondents said, the explanation lay in the fact that the terms and conditions were set by a different sponsoring department. This contention was not accepted on the part of the Judges concerned. It was argued, for example, that the Respondents' evidence was so tenuous that it could not discharge the burden of proof that lay upon it and that the evidence pointed to the distinction lying between those who were fee-paid and those who were salaried, a distinction that showed that part-time status was critical, since those who were fee-paid would be part-time.[13]The Employment Judge made findings of fact relating to this issue at paragraphs 34 to 44 of the Reasons and summarised the submissions of the parties at paragraphs 45 to 48. He turned to his discussion and conclusions at paragraphs 49 to 51. He found that he did not need to resort to the burden of proof. He said (paragraph 50):
"50. … But much more fundamentally I am satisfied on the balance of probabilities that the respondent [sic] has demonstrated the existence of a non-discriminatory reason for the terms enjoyed by both RPTS chairs and VPs. That conclusion enables me to dispose of the reason why defence in respect of all three issues together and is why I have not set out Mr Bourne's [counsel for the Respondents] separate submissions in respect of them. In my judgment the answer to the question what was the cause of the terms and conditions enjoyed by RPTS judges is to be found in the Leggatt Report and the ensuing white paper and it has nothing to do with part-time status. It was to do with the haphazard growth of tribunals and the independence - the drive for greater delegated authority - of ministers and government departments to set the terms and conditions of their own departmental tribunals (and RPTS would have been among the first if not the very first) and the seeming near impossibility of ascertaining what was being paid to other similar office holders because no central data base existed. It was, to borrow a phrase from the white paper, a function of the piecemeal development of terms and conditions reflecting market forces and differing departmental approaches. …"
[14]This reasoning would also apply to the claims by the Valuer and Legal Chairs to a pension, but, as I have said, the point was not taken as a liability point at the hearing of the claims by Valuer and Legal Chairs to a pension. The Appeal[15]As we have seen, the Claimant's claim was not the lead case in respect of the daily fee issue. Mrs Burton did not appeal it. But another Claimant may appeal if it is not an abuse of process for that Claimant to do so (see Martineau v Ministry of Justice [2015] ICR 1122 EAT). The Claimant's appeal was considered on paper by Langstaff P to disclose no reasonable ground for appealing, but following an oral hearing HHJ Peter Clark permitted one ground of appeal to proceed.[16]The Claimant's argument is a bold one. He submits that Regulation 5(2)(a) must never be construed in such a way as to defeat a claim under Regulation 5(1). He points out, correctly, that the Valuer and Legal Chairs of the RPTS had established that they had received less favourable treatment than a comparator Judge of the First Tier Tribunal. They had not been treated proportionately. It would be unconscionable, he submits, for Regulation 5(2)(a) to be interpreted in such a way as to take away the right afforded by Regulation 5(1). He submits that Regulation 5(2)(a) was not intended to provide a defence that would perpetuate historic differences in the treatment of part-time workers. I shall return in a moment to an example he gave. He points to the use of the present tense in Regulation 5(1). He submits that Regulation 5(2)(a) should be read as applicable only to specific issues. He gave as an example London weighting. An allowance from London weighting would be stripped out of a comparison between a full-time worker in London and a part-time worker outside London, since it was not by reason of part-time status. In his submission, Regulation 5(2)(a) was limited to matters of this kind.[17]Attractively though the Claimant puts this argument, I cannot accept it. In my judgment, it cannot be reconciled with the provisions of the 2000 Regulations . These make it plain that the right afforded by Regulation 5(1) applies only where the conditions set out in Regulation 5(2) are met. I can see no warrant in the 2000 Regulations for giving Regulation 5(2)(a) a restricted application. It may well apply to a specific issue such as London weighting, though Regulation 5(2)(b) might also then be in play, but there is no principled basis for restricting it to such a case.[18]In this respect, the 2000 Regulations entirely follow the provisions of the PTWD that they were enacted to implement. The PTWD was concerned to provide a remedy for those who were treated in a less favourable manner than comparable full-time workers "solely because they work part-time". While the language of the 2000 Regulations is wider, their purpose is the same. As Mr Charles Bourne QC and Ms Kamm put it in their skeleton argument, the purpose of the legislation is not to redress any and all injustices that may exist; it is to redress the less favourable treatment of part-time workers if and only if that treatment occurs because they are part-time workers.[19]When HHJ Peter Clark allowed this appeal through to a Full Hearing, he was concerned about a reference in the Claimant's grounds of appeal to the perpetuation of historic injustices. The Claimant said it cannot have been the intention of the legislature that Regulation 5(2)(a) could be construed so as to perpetuate such injustices. HHJ Peter Clark picked up this reference. He said (paragraph 4):
"4. … The finding (paragraph 50) that the difference was due to the haphazard growth of tribunals and had nothing to do with part-time status arguably misses the point. It has long been the experience of cases of unlawful discrimination that the difference in treatment may be historical. However, that does not, of itself, make it lawful. This point, Mr Engel submitted, was not taken at the Burton hearing …"
[20]It is of course true that haphazard and opaque management and administration is ground within which discrimination of any kind may thrive either consciously or unconsciously. Moreover, until 2000 it would not have been unlawful to discriminate on the basis of part-time status. Therefore, merely to say that an arrangement is historical in nature does not answer the question of whether it was by reason of part-time status. If the Employment Judge had reasoned in that way, he would have been incorrect in law. It is, however, entirely plain from the Employment Judge's Reasons that he did not fall into this error. He gave careful consideration to the question of whether the differences in treatment were by reason of part-time status. He looked at the available evidence. He was satisfied by that evidence that they were not. The Employment Judge did not suppose that it was an answer to the claim to say that the differences were historical.[21]This brings me to an example that the Claimant gave today. Suppose a company that pays its own part-time workers pro rata to full-time workers takes over part-time employees who do similar work from another company, which paid them less? Can it be permissible under the 2000 Regulations for the company to perpetuate the lower rate of pay to the newly acquired part-time workers? The Claimant submitted it would be contrary to the purpose of the 2000 Regulations if this were the case, but, to my mind, it depends on the reason why the company pays less, a matter which an Employment Tribunal would investigate with care and which it would be for the company to identify.[22]I have, for those reasons, reached the conclusion that the appeal against the Judgment dated 26 May 2015 must be dismissed.[23]For completeness, I should add that the Claimant argued that the Respondents' resistance to this appeal amounted to a breach of section 149 of the Equality Act 2010 , the public sector equality duty. He said that since Legal and Valuer Judges in the First Tier Tribunal would soon find their pay harmonised with that of the Tax Judge, retired Judges would be the subject of discrimination on the grounds of age. There are, I think, many problems with this argument. It is sufficient to say that the public sector equality duty did not change the law that the Employment Tribunal had to apply under the 2000 Regulations , it did not provide the Claimant with a remedy under those Regulations if the less favourable treatment was not by reason of part-time status, and it is no basis to find that the Employment Judge erred in law. The Judgment Dated 26 June 2015[24]When he received the Judgment dated 26 May 2015, the Claimant applied under Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 for an Order that the decision in Mrs Burton's case should not apply to him. Rule 36, so far as material, provides as follows:
"(1) Where a Tribunal considers that two or more claims give rise to common or related issues of fact or law, the Tribunal or the President may make an order specifying one or more of those claims as a lead case and staying, or in Scotland sisting, the other claims ("the related cases"). (2) When the Tribunal makes a decision in respect of the common or related issues it shall send a copy of that decision to each party in each of the related cases and, subject to paragraph (3), that decision shall be binding on each of those parties. (3) Within 28 days after the date on which the Tribunal sent a copy of the decision to a party under paragraph (2), that party may apply in writing for an order that the decision does not apply to, and is not binding on the parties to, a particular related case."
[25]The Claimant's application dated 18 June 2015 contained two main submissions. The first was that he was entitled as a right to the Order. Anything else would infringe his right to a fair hearing under Article 6 of the European Convention on Human Rights and Fundamental Freedoms . The second was that he did not know the meaning of the "reason why" point until he read the Employment Judge's Reasons. He did not know the point would be argued, and he had no opportunity of countering it by presenting evidence, cross-examining witnesses or making submissions.[26]The Employment Judge rejected the argument that the Claimant was entitled as a right to the Order he sought, saying that an individual's Article 6 right is "not an unfettered right irrespective of cost, complexity and inconvenience both public and private"(paragraph 4).[27]He also rejected the Claimant's submission that he did not know that the point would be argued, referring in particular to paragraph 3 of the issues summarised in the Order dated 3 June 2014. He pointed out that the Order following the October hearing was sent to the Claimant. He also made the point that the Claimant had not applied to be a lead case in respect of the daily sitting fee. (He may have been wrong in that respect. While he may only have been referring to May 2014, it is possible that he, as well as the Claimant, had forgotten that the Claimant in fact applied on 23 October, as I have described.) Fundamentally, the Employment Judge held that the Claimant offered no ground for differentiating his claim from that of Mrs Burton on either factual or legal grounds. The Appeal[28]I shall, for the purpose of exposition, reorder the grounds of appeal that the Claimant puts forward.[29]The Claimant's second, third and fourth grounds assert that the Employment Judge erred in law in rejecting his submission that he was entitled to an Order under Rule 36(3) as a right. He submits that, contrary to what the Employment Judge said, the right to a fair hearing is unfettered. He must therefore be entitled to an Order. If Rule 36(3) is to be read in any other way, it ought to be struck down.[30]I reject this argument essentially for reasons advanced by Mr Bourne QC, which I may summarise briefly. Case law under Article 6 establishes that access to a court may be made subject to limitations if these are not of such a degree as to impair the essence of the right after a legitimate aim and are reasonably proportionate to that aim (see, for example, Ashingdane v UK [1985] 7 EHRR 528 and Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910 HL at paragraph 20). Group litigation is an obvious category where access to the court must be subject to reasonable case management rules. The use of lead cases does not offend against Article 6, and Rule 36(3) can be operated in a way that is compatible with the rights of those who are not lead Claimants. Generally, the arguments of other Claimants will be fully and fairly explored by the representative lead case or cases selected by the Employment Tribunal. It may therefore be an abuse of the process for another Claimant to re-litigate issues that were resolved by the test case (see, for example, Ashmore v British Coal Corporation [1990] ICR 485 CA), but if there is some good reason why a subsequent Claimant should not be bound by the test case Rule 36(3) protects his position.[31]In my judgment, therefore, the Claimant was not entitled to an Order as a right. The question is whether the Employment Judge erred in law in concluding that an Order should not be made in his case. The remaining grounds of appeal are concerned with this question.[32]The Claimant's first ground of appeal is that the Employment Judge erred in concluding that he offered no ground for differentiating his claim from that of Mrs Burton. He says that he wished to advance an argument that was never considered by the Employment Judge. This argument, however, is the one that he has sought to advance in the first appeal. I have rejected it. This ground of appeal falls with it. The Claimant, in my judgment, offered no ground for differentiating his claim from that of Mrs Burton and is unable to do so.[33]The Claimant's fifth and sixth grounds of appeal, as explained by his skeleton argument, rest upon the proposition that the Employment Tribunal ought to have joined him as a party or provided him with information relating to the issues because he did not know that Ms Burton's legal team was not taking what he says was a good argument; but I have already rejected that argument. To my mind, it is not consistent with the wording of the legislation. There was no duty upon the Employment Tribunal to give the Claimant information or join him to take this point.[34]The Claimant's seventh ground of appeal is that since his was a lead case in respect of the fee for Judgment writing the Employment Tribunal was required to make his a lead case in respect of the daily fee. He says that Rule 36 makes no provision for the splitting of issues. He engagingly says that it should do so but argues that the Rule, being "unfit for purpose", does not do so.[35]I reject his interpretation of Rule 36. The Employment Tribunal is, to my mind, plainly entitled to apply Rule 36 on an issue-by-issue basis and to make different Orders in respect of different issues if it is in accordance with the overriding objective to do so. The Employment Tribunal must seek to give effect to the overriding objective in interpreting the Rules (see Rule 2). No other interpretation would make practical sense of Rule 36. In any event, as Mr Bourne QC pointed out, Rule 36 is no more than an example of the Employment Tribunal's wide powers of case management (see Rule 29, which expressly provides that subsequent Rules do not restrict the Employment Tribunal's case management powers).[36]The Claimant's eighth ground of appeal is that the Employment Judge was wrong to reject the second aspect of his application, namely that he did not know the meaning of the "reason why" point, did not know the point would be argued and had no opportunity of countering it by presenting evidence, cross-examining witnesses or making submissions. In fact, the Claimant now accepts that he did understand the "reason why" point. He has been back through his papers and accepts that he appreciated its significance in 2014. So, the Employment Judge was in fact correct in concluding that the Claimant appreciated its significance. The Claimant says that he had forgotten in May 2015 that he had appreciated its significance the previous year. He wishes to replace part of his application before the Employment Judge with a different argument: that he did not know Mrs Burton's team would fail to argue the point he now wishes to take.[37]There are two problems at least with this part of the Claimant's submissions. First, this is an appeal against the Employment Judge's decision. It must be established that the Employment Judge erred in law. He cannot be faulted for dealing with the application in the way that it was put before him. Secondly, as I have already found, the Claimant's argument on the "reason why" question is incorrect.[38]I have stood back and looked carefully at the Employment Judge's Reasons. I cannot detect any error of law in them. It is true that the Claimant did apply, albeit rather late, to be a lead Claimant in the daily fee claim. That mistake was one feature that influenced HHJ Peter Clark to send this appeal through to the Full Hearing. The Employment Judge may have forgotten, as the Claimant himself did, that the Claimant had made that application in October 2014 to be a lead Claimant, although it is possible that the Employment Judge was really only addressing his mind to the position in May 2014, but, whether or not the Employment Judge misunderstood that point, I am entirely satisfied that it was not a significant feature in his reasoning. It follows that this appeal as well will be dismissed.