Engel v Ministry of Justice and Department for Communities and Local Government (Part Time Workers) [2016] UKEAT 0487_15_2605

EAT
Engel v Ministry of Justice and Department for Communities and Local Government (Part Time Workers)
[2016] UKEAT 0487_15_2605 · 2016-05-26
[1]Mr Engel, now retired, was a fee-paid Judge of both the Property Chamber and Social Entitlement Chamber of the First Tier Tribunal and its predecessors. He is now engaged in what may broadly be described as the O’Brien litigation against the Ministry of Justice concerned with the pension and other entitlements of fee-paid Judges. He lodged his claim in the Employment Tribunal in September 2011.[2]I am concerned with the following matters affecting him:(1) A Rule 3(10) Hearing in PA/0487/15/LA, an appeal by Mr Engel lodged on 25 June 2015 against Employment Judge Macmillan’s Judgment in Burton v Ministry of Justice dated 27 May 2015, rejected under Rule 3(7) by Langstaff P by letter dated 5 November 2015.(2) A Rule 3(10) Hearing and Preliminary Hearing in EAT/0337/15/LA arising out of his Notice of Appeal served in July 2015 against the Judgment of Employment Judge Macmillan dated 26 June 2015 refusing his application under Employment Tribunal Rule 36(3) that Employment Judge Macmillan’s decision dated 27 May 2013 in the case of Burton et al v Ministry of Justice should not apply to him. The substantive appeal against the Rule 36(3) decision was rejected by Langstaff P under Rule 3(7) Employment Appeal Tribunal Rules ; however, ground (ix) alleging bias against Employment Judge Macmillan was permitted to proceed to a Preliminary Hearing.(3) An appeal against the Registrar’s decision not to refund the lodgement fees in respect of the two earlier appeals, totalling £800. The Arguable Points[3]It seems to me, having heard Mr Engel and considered his detailed written submissions, that the following grounds of the first two appeals require full argument at a Full Hearing. I take them in combination.[4]In rejecting Mr Engel’s application under Rule 36(3) Employment Judge Macmillan observed (Reasons, 26 June 2015, paragraph 5) that “Mr Engel offers no ground for differentiating his claim from that of Mrs Burton on either factual or legal grounds …”. However, Mr Engel drew my attention to his written Rule 36(3) application dated 18 June 2015. At paragraph 11(a) he submitted that, applying Regulation 5(2)(a) Part-time Workers Regulations 2000 , since the Ministry of Justice conceded that Legal Chairs, such as Mr Engel, had a comparator (full-time Tax Judges) the first question was whether the difference in treatment was on the ground that the Claimant was a part-time worker. 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 (see his Rule 36(3) application, paragraph 11(a); final two lines in parenthesis). It seem to me that(a) this may amount to a difference in the way in which Mr Engel puts his case to that of Mrs Burton at the first hearing and(b) is an arguable point of substance; see second appeal (EAT/0337/15/LA) paragraph 6(i) and first appeal (PA/0487/15/LA) paragraph 7(i).[5]Further, it is arguable, contrary to paragraph 7 of the 26 June 2015 Judgment, that Mr Engel did apply to be joined as a lead Claimant for the daily fee claim on 23 October 2014 (see the note taken by Miss Kamm, junior counsel for the Ministry of Justice, of the hearing before Employment Judge Macmillan held on that day (black bundle, page 277).[6]More generally, it seems to me that the scope of Rule 36(3) requires consideration at a Full Hearing.[7]Accordingly, I shall permit the appeal in PA/0487/15/LA paragraph 7(i) and the appeal in EAT/0337/15/LA paragraph 6(i)-(viii) to proceed to a combined Full Hearing. Unarguable Points[8]I am not persuaded that the procedural irregularities points raised in paragraph 6(ix) of the appeal in EAT/0337/15/LA, directed to this Preliminary Hearing by Langstaff P, have any reasonable prospect of success. I bear in mind the observations of Langstaff P in Ministry of Justice v Burton and Engel (UKEAT/0210/15/LA and UKEAT/0211/15/LA, paragraphs 59 to 62), to which counsel for the Ministry of Justice refer in their written submissions dated 23 December 2015. In my opinion Employment Judge Macmillan was right not to recuse himself.[9]As to the remainder of the grounds of appeal in PA/0487/15/LA (paragraphs 7(ii)-(v)), these add nothing to the arguable points identified earlier. The same is true of the proposed amendment at paragraph 30 of the Claimant’s skeleton argument. Permission to amend is refused. Fees[10]Mr Engel’s point appears to be that since he lodged his claim at the Employment Tribunal before the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 came into force (on 29 July 2013) he is not liable to pay a lodgement fee in respect of the two separate appeals presently under consideration. The Registrar refused to order those fees to be repaid. Mr Engel now appeals that decision to me.[11]Under the transitional arrangements no fee is payable in respect of a claim where the claim form was presented before 29 July 2013; the relevant date (see paragraph 15). However, paragraph 16 provides that no fee is payable in respect of proceedings in the Employment Appeal Tribunal where a Notice of Appeal was received before the relevant date. Here, the relevant appeals were lodged in 2015.[12]Mr Engel referred me to the Interpretation section at paragraph 2 of the Fees Order and in particular to the definition of “claim”:
“ “claim” means any proceedings brought before an employment tribunal and includes an appeal, application, complaint, reference or question, and “claimant” shall be construed accordingly”
[13]For completeness I would add the following further definitions:
“ “claim form” means the form by means of which a person presents a claim; … “notice of appeal” means the notice referred to in rule 3(1)(a) of the Employment Appeal Tribunal Rules 1993”
[14]Mr Engel submits that the reference in the definition of “claim” to “appeal” includes an appeal to the Employment Appeal Tribunal. Thus such appeals are included in the scope of a claim in paragraph 15 of the Order and therefore he is exempt from paying the £400 fee in respect of each of the relevant 2015 appeals required by paragraph 13 of the Order by virtue of paragraph 15.[15]I reject that submission for the following reasons. First, what Mr Engel had overlooked was that the Employment Tribunal has, in addition to its first instance jurisdiction to hear complaints, various appellate jurisdictions. During the course of discussion, having recalled that such appellate jurisdictions existed, I referred him to the full list of statutory jurisdictions of Employment Tribunals, helpfully set out in Harvey on Industrial Relations and Employment Law , volume 4 PI[48]. They include; under Regulation 42(1) Colleges of Education (Compensation) Regulations 1975 , appeals from compensating authority regarding claims for compensation; under section 12 Industrial Training Act 1982 , appeals against assessment of training levies; appeals against improvement and prohibition notices under Regulation 18 of Control of Major Accident Hazards Regulations 1999 , Schedule 2 paragraph 6(2) of the Road Transport (Working Time) Regulations 2005 , and section 24 of the Health and Safety at Work Act 1974 ; appeals against notices of underpayment under section 19C(1) of the National Minimum Wage Act 1998 .[16]It follows, in my judgment, that the reference to “an appeal” in the definition of claim in paragraph 2 of the 2013 Fees Order is in relation to appeals to (“before”) an Employment Tribunal, not appeals from an Employment Tribunal to the Employment Appeal Tribunal. That explains the separation between the transitional arrangements in paragraphs 15 and 16 of the 2013 Fees Order . Paragraph 15 is concerned with proceedings in the Employment Tribunal, paragraph 16 with proceedings in the Employment Appeal Tribunal.[17]Mr Engel suggested that paragraph 16 was concerned only with appeals to the Employment Appeal Tribunal from bodies other than the Employment Tribunal, for example appeals from the Central Arbitration Committee or the Certification Officer. In my judgment all appeals to the Employment Appeal Tribunal, listed in Harvey volume 4 PI[1402], including those mentioned, commenced by a Notice of Appeal in accordance with Rule 3(1)(a) of the Employment Appeal Tribunal Rules 1993 (as amended), are covered by paragraph 16 of the 2013 Order .[18]Mr Engel made a separate point, that he had lodged an appeal in this litigation against the Order of the then President, Judge David Latham, dated 4 July 2013, prior to the relevant date. That may well be so. In which case he would not be liable for a fee in respect of that appeal. However, each appeal is separately subject to the lodgement fee of £400 (unless eligible for remission; not this case) and a separate appeal is required in respect of each Employment Tribunal decision challenged.[19]In short he cannot rely on the fact(a) that he lodged his claim in the Employment Tribunal or(b) lodged an appeal against an earlier Employment Tribunal decision before the relevant date to exempt him from lodgement fees in respect of these two relevant appeals in 2015. The Registrar was right not to direct repayment of those fees. The appeal against her decision is dismissed.[20]For the avoidance of doubt a hearing fee is payable in respect of those appeals permitted to proceed to a Full Hearing under paragraph 14 of the 2013 Order . However, since those appeals are combined to be heard at the same hearing only one fee (£1,200) will be payable. Directions[21]The fees appeal is dismissed. The grounds set out at paragraph 7(i) of PA/0487/15/LA and paragraphs 6(i)-(viii) of EAT/0337/15/LA shall be combined and proceed to a Full Hearing. EAT/0337/15/LA ground 6(ix) is dismissed. Paragraphs 7(ii)-(v) of PA/0487/15/LA also stand dismissed.[22]The combined appeals shall be listed for a Full Hearing. Four hours, Category A, the hearing to be expedited. The Respondent’s Answer to be served within 14 days and if the Respondent wishes to serve a cross-appeal, directions for the disposal of the cross-appeal will be given on paper. Skeleton arguments to be exchanged and lodged, and the Appellant to lodge a chronology, not less than 14 days before the date fixed for the Full Hearing. An agreed bundle of relevant documents to be lodged 28 days before that date. Liberty to apply.