Mr R Wagener v The Right Honourable M Gove MP and others: 2407553/2021 and 2401493/2022
| Jurisdiction | England & Wales |
| Judgment Date | 23 August 2023 |
| Date | 23 August 2023 |
| Published date | 29 November 2022 |
| Court | Employment Tribunal |
| Citation | 2407553/2021 and 2401493/2022 |
| Subject Matter | Age Discrimination |
Case No. 2407553/2021
1
EMPLOYMENT TRIBUNALS
Claimant: Mr R Wagener
Respondent: The Right Honourable Michael Gove MP
Heard at: Manchester (public hearing via CVP)
On: 16 November 2022
Before: Judge Brian Doyle (sitting alone)
Representation:
Claimant: In person
Respondent: Ms Naomi Ling, Counsel
RESERVED JUDGMENT
1. The Tribunal considers that Mr Gove has apparently been wrongly included as a
party (a respondent) to this claim. The Tribunal determines that he should be
removed from the proceedings under rule 34 accordingly.
2. Acting under rule 34, the Tribunal orders that the Cabinet Office shall be joined as
a respondent to the claim in substitution for Mr Gove.
3. The respondent’s present application to strike out the claim, whether under rule 34
or rule 37, is refused.
REASONS
1. This is a preliminary hearing to consider two preliminary questions concerned with
the correct respondent to a claim presented on 13 June 2021 [2-13], following
Acas early conciliation between 28 May 2021 and 7 June 2021 [1]. An ET3
response to the claim is dated 14 July 2021 [14-25].
2. A case management hearing before Employment Judge Frazer on 5 October 2021
identified the preliminary questions as being: (1) whether The Right Honourable
Michael Gove MP is the correct respondent and, if not, whether the claim against
Case No. 2407553/2021
2
him should be struck out; and (2) if appropriate, to identify who the correct
respondent(s) to the claim would otherwise be.
3. The Tribunal had before it an electronic bundle of documents comprising 244
pages, together with a separate index. References to the bundle appear in square
brackets in these reasons. The Tribunal also had witness statements from Mr
Robert Wagener, the claimant (11 pages); and, on behalf of the respondent, from
Mr Michael Gove (2 pages) and Mr Colin Hennem (9 pages). It was agreed that
the witness statements would be taken as read and that they did not need to be
tested by cross-examination or questions. The witness statement of the claimant
was treated as his written submissions. Counsel for the respondent, Ms Naomi
Ling, presented written submissions, supported by various materials.
4. The hearing lasted just over 2 hours. The Tribunal reserved its judgment on the
preliminary questions. It considered its decision “in chambers” during the rest of
the sitting day and it wrote up its decision thereafter.
The claim
5. The claimant was employed by Her Majesty’s Revenue and Customs (HMRC) from
3 October 1983 until his retirement on 30 April 2021. He has Type 1 Diabetes. He
was also diagnosed with ME shortly before his retirement. The claimant was born
on 30 April 1961. He retired at the age of 60.
6. That was earlier than he might have retired because he wanted to maximise the
quality years of his retirement. As a result of that decision, he retired with a pension
and lump sum calculated in accordance with his pensionable pay and reckonable
years of service as at the date of retirement. Had he not retired when he did, he
would have had additional reckonable years of service at a higher rate of
pensionable pay, which would have increased his pension and lump sum
payments. He would have benefited from a 3 year pay deal that would have
increased his rate of pay.
7. The basis of his claim is that he had written to the relevant Minister, Mr Gove, in
March and April 2021 requesting him to exercise his discretion under the Civil
Service Pension Scheme rules to grant him additional years of pensionable service
because there were special circumstances that justified the exercise of discretion.
It does not appear that his request was determined.
8. The claim contains complaints of disability discrimination. The claimant confirmed
that it did not contain complaints of age discrimination (although the relevant box
for such a complaint had been ticked). It appears that, subject to any further
particularisation that might be required, the claimant relies primarily upon sections
15 and 20-21 of the Equality Act 2010, by reference to section 61 of the Act.
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