O’Brien v Ministry of Justice (formerly Department of Constitutional Affairs) (No 1)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay:,Lady Justice Smith,Chancellor of the High Court
Judgment Date19 Dec 2009
Neutral Citation[2008] EWCA Civ 1448
Docket NumberCase No: A2/2008/1123

[2008] EWCA Civ 1448

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

UKEAT 013907ZT

Before:

Chancellor Of The High Court

Lady Justice Smith and

Lord Justice Maurice Kay

Case No: A2/2008/1123

Between
O'brien
Appellant
and
Department for Constitutional Affairs
Respondent

Mr Robin Allen Qc And Miss Rachel Crasnow (instructed By Messrs Browne Jacobson) For The Appellant

Mr John Cavanagh Qc (instructed By Treasury Solicitors) For The Respondent

Hearing dates: 12, 13 November 2008

Lord Justice Maurice Kay:
1

Recorders play an important part as part-time judges in the Crown Court and the County Courts. Most are in full-time practice as barristers or solicitors, although some have left practice and hold full-time positions as, for example, District Judges. The focus of this case is upon those who remain in practice but sit on a part-time basis. They are remunerated on a fee-paid daily basis. Whether or not they continue in practice beyond the age of 65, they are stood down as Recorders at that age. The main reason for this is to create vacancies for younger Recorders from whom, it is expected, most of the future full-time judiciary will be appointed. Until recently, no-one would have thought that a Recorder qualified for a pro rata judicial pension on retirement. The issue raised on this appeal is whether the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the PTWR), which is founded upon and purports to implement the Part-time Workers Framework Directive 97/81/EC) (the Directive), either entitles or disentitles Recorders to or from the protection of part-time workers against discrimination.

2

The appellant was a Recorder from 1978 until his retirement at the age of 65 on 31 March 2005. He is one of a number of part-time judicial office holders who have instituted proceedings in the Employment Tribunal claiming that protection. The claim may appear to be a bold one since Regulation 17 of the PTWR provides:

“These Regulations do not apply to any individual in his capacity as a holder of a judicial office if he is remunerated on a daily fee-paid basis.”

3

It is common ground that that provision is not susceptible to an interpretation favourable to the appellant. However, his case is that Regulation 17 must be disapplied because of the direct effect of the Directive which does not permit a provision of that kind.

4

The substance of this case (although not all the submissions in support of it) was considered by the Employment Appeal Tribunal in Christie v Department of Constitutional Affairs [2007] ICR 1553, in which Elias J, sitting alone, concluded that Regulation 17 was compatible with the Directive. Permission was granted to appeal to this Court but the appeal was abandoned after the appellant failed to obtain a protective costs order. The present case has an interesting procedural history. It was heard in the Employment Tribunal in July 2006, before the decision of the Employment Tribunal in Christie and long before the decision of the Employment Appeal Tribunal in that case. The hearing in the Employment Tribunal in this case had been intended to consider four issues:

“First, is the claim brought out of time? Second, if so, would it be just and equitable to extend time? Third, if so, does Regulation 17 of the PTWR bar the claimant from bringing his claim? Fourth, if so, can the claimant nevertheless rely on the provisions of the Directive and argue that it has not been properly implement into UK law?”

5

However, at the hearing it was decided that only the first two issues relating to time would be decided at that stage. The chairman recorded:

“For the purposes of determining the time issue, I am asked to assume that Regulation 17 is incompatible with EC law.”

6

The decision of the Employment Tribunal was that the claim had been brought out of time but that it was just and equitable to extend time. The Department for Constitutional Affairs (the Department) appealed to the Employment Appeal Tribunal in relation to the extension of time whereupon the appellant cross-appealed on the question whether he was out of time in the first place.

7

On 23 April 2008, Langstaff J (sitting alone) allowed the appeal and dismissed the cross-appeal. By this time the decision of the Employment Appeal Tribunal in Christie had become well known and it is referred to in the judgment of Langstaff J. However, he did not address the substantive issue about Regulation 1The appellant then sought permission to appeal to this Court. I considered the application on the papers. By then it had become apparent that the appellant was hoping to include both the time issue and the substantive issue in his proposed appeal. Initially, I refused permission to appeal and expressed the view that the appellant did not have a real prospect of success on the time issue. I also stated that I did not consider that this was an appropriate case for raising the substantive point in the Court of Appeal. However, I added:

“I could be persuaded to grant permission on the Christie point if, but only if, the respondent were to agree that this is a suitable vehicle for a test case on Regulation 17.”

8

It then transpired that the Department did agree that the present case is a suitable test case and, when the matter was referred back to me, I granted permission to appeal such as to enable the appellant to pursue both the time issue and the substantive issue. I was and remain persuaded that, if the appellant were to succeed on the time issue, it would become necessary for this Court to consider whether or not to remit the case to the Employment Tribunal. As it is the case for the Department that Regulation 17 does not fall to be disapplied, there would be no point in remitting the matter if the Department is correct. This is common ground.

9

Whilst these events were unfolding, another case raising the same point on Regulation 17 came before the Employment Tribunal in Bristol. In Miller v Ministry of Justice, the Employment Tribunal acceded to an application on behalf of the applicant for a reference of the Regulation 17 point to the European Court of Justice. The Department (by now the Ministry of Justice) had sought to resist a reference on the ground that in Christie Elias J had considered the point to be acte clair. Nevertheless, a reference was made, which prompted the Department to appeal to the Employment Appeal Tribunal against that decision. In Miller, that is where the matter rests. No-one has suggested that we should delay consideration of the present appeal. I propose to deal first with the time issue.

1

The Time Issue

10

The position relating to time limits in respect of a claim under the PTWR is set out in Regulation 8(2) and (3) which provide:

“(2) Subject to paragraph (3), an Employment Tribunal shall not consider a complaint under this Regulation unless it is presented before the end of the period of three months … beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of the series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.

(3) A Tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

11

The PTWR came into force on 1 July 2000. On 23 September 2004 an official in the Department wrote to the appellant giving notice of termination of his Recordership on 31 March 2005. On 9 June 2005 the appellant wrote to the Department and referred to the Directive. He stated:

“I require you not to discriminate against me as a part-time worker but to pay me a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full-time judges who had been engaged in the same or similar work. In my case the comparator was a full-time Circuit Judge … Please acknowledge receipt of this letter and let me have your proposals as soon as possible.”

12

On 5 July 2005 an official in the Department replied stating that Recorders fall outside the category of office holders to whom a pension is payable under the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993. She continued:

“Domestic law does not regard judicial office holders, whether full-time or part-time (or more accurately, fee-paid), as having an employment contract or employment relationship. Accordingly fee paid judicial office holders fall outside the ambit of the Directive. In any event fee-paid judicial office holders are expressly excluded from the ambit of the [PTWR] by Regulation 17.”

13

On 21 July 2005 the appellant replied setting out his argument by reference to the Directive before concluding:

“I repeat my request and, subject to advice, will issue proceedings if it is not met.”

14

On 29 July the Department replied noting the appellant's comments but saying that there was nothing further that could usefully be added to the earlier response. On 7 August the appellant acknowledged that letter and added:

“Unless I hear from you to the contrary (or am otherwise so advised) I shall assume that the designation of the appropriate defendant is 'The Department for Constitutional Affairs' and that the Treasury Solicitor will accept service.”

15

By a letter dated 31 August 2005 the Department indicated that the Treasury Solicitor would accept service. Although we have been provided with a copy of that letter it was not produced before the...

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