Mr R Wagener v Commissioners for HM Revenue & Customs and HM Treasury: 2416695/2018
| Judgment Date | 09 September 2019 |
| Citation | 2416695/2018 |
| Published date | 25 July 2019 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case No. 2416695/2018
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EMPLOYMENT TRIBUNALS
Claimant:
Mr R Wagener
Respondents:
1. Commissioners for Her Majesty’s Revenue & Customs
2. HM Treasury
Heard at:
Liverpool
On:
24 June 2019
Before:
Employment Judge Horne
REPRESENTATION:
Claimant:
Respondent:
In person
Mr R Moretto, counsel
Written reasons were requested orally at the hearing. Accordingly, the following
reasons are provided:
REASONS
Introduction
1. The claimant is a civil servant employed by the first respondent (“HMRC”). By a
claim form presented on 1 November 2018, he complained of indirect age
discrimination by HMRC contrary to sections 19 and 39 of the Equality Act 2010
(“EqA”). He also complained that HM Treasury indirectly discriminated against
him, although he has never been employed by the Treasury. There has since
been correspondence clarifying the statutory basis upon which HM Treasury
would be liable for such discrimination, but that does not matter for the purpose of
this judgment. Both respondents are said to have discriminated against the
claimant in the same way.
Purpose of this preliminary hearing
2. At a case management hearing on 28 January 2019, the parties agreed that
there should be a preliminary hearing in public. One of the purposes of the
Case No. 2416695/2018
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hearing was to consider whether or not the claim against HMRC should be struck
out on the ground that it had no reasonable prospect of success. A further
purpose of the preliminary hearing was to determine whether or not the claim had
been presented within the statutory time limit and, if not, whether it would be just
and equitable for the time limit to be extended.
3. During the course of the preliminary hearing, it became clear that the evidence on
the just and equitable extension issue would be complicated. The claimant
sought to rely on the content of advice given to him by solicitors and by an ACAS
conciliation officer. The respondent’s position was that the claimant had waived
privilege in all the advice he had received in respect of the proposed claim. The
claimant did not agree. Rather than adjudicate on this dispute, I decided to
consider the arguments in relation to the strike-out application first and to revisit
the question of time limits if the claim was not struck out. Neither party objected
to this course.
Basis of the claim
Background
4. The claimant was born on 30 April 1961 and is now 58 years old. His role within
HMRC is a relatively senior position and falls at Grade 6 within HMRC’s pay
structures. He was promoted to the role on 2 January 2013 and has remained at
that grade ever since.
5. Not all Grade 6 managers are paid the same. Their salaries fall within a pay
band whose minimum and maximum salary are determined from year to year.
There is no contractual right to progression within the salary band. Rather, each
Grade 6 manager’s salary is increased by a pay award which takes effect on 1
June each year. The claimant’s salary has increased since 2013, but, owing to
public sector pay restraints, the size of his annual pay awards has been such that
he has virtually no chance of reaching the maximum salary by the time he
expects to retire. It is his case that the slow rate of pay progression is indirectly
discriminatory.
PCPs
6. During the lifetime of this claim the claimant has identified a number of
provisions, criteria or practice (PCPs) which, he says, have the discriminatory
effect. In his claim form, he sought to define the PCP as “the regular practices
relating to progression pay”. During the preliminary hearing on 28 January 2018,
I asked the claimant what it was about those practices that put his age group at a
disadvantage. The claimant said it was “the slow speed of progression”.
7. In my written case management order sent to the parties on 1 February 2019, I
expressed the view that the PCP ought to be recast as “the practice of making
small annual pay awards over a given number of years.” By letter sent the
following day, the claimant indicated that this formulation of the PCP did not
accurately capture what he had claimed. Under the heading, “PCP”, the
claimant’s letter of 2 February 2019 stated, with bold type added by me:
“My claim was and is that it is the slow-down in moving staff from the
minimum to maximum pay that gives rise to indirect discrimination here”, in
particular the fact that this takes a lot longer than the 5-year exemption…”
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