Mr Justice Silber:
I Introduction
- This appeal like the previous appeal in this matter to this Court raises issues on the application of the Justices of the Peace Act 1949 (Compensation) Regulations 1978 ("the Crombie Regulations") as Mrs. Debra Jane Slee ("the claimant") contends that she is entitled to compensation under these regulations as a result of the re-organization of Wimbledon Magistrates Court and her unfair dismissal.
- The claims made by the claimant have since March 2006 already been the subject of two hearings by Employment Tribunals and of two hearings by appellate bodies. First, by a decision dated 5 April 2006, ("The 2006 decision") an Employment Tribunal sitting in London held, among other things, that (a) the claimant had been constructively unfairly dismissed by The Department for Constitutional Affairs ("the respondent"); ...b) the respondent had failed to offer to the claimant a suitable available vacancy following the redundancy of her existing post contrary to regulation 10 of the Maternity and Parental Leave etc Regulations 1999 ("the 1999 regulations"); (c) the claimant suffered a detriment for the reason that she took ordinary maternity leave and additional maternity leave contrary to regulation 19 of the 1999 regulations; (d) the respondent unlawfully discriminated against the claimant on grounds of her sex; and (e) the claimant's appeal under regulation 41 of the Crombie Regulations failed and was dismissed.
- The respondent (who is now the Secretary of State for Justice in place of the Department of Constitutional Affairs) appealed to the Employment Appeal Tribunal against decisions (a) – (d) of the Employment Tribunal. Those appeals were dismissed by a division of the Employment Appeal Tribunal over which I presided in a judgment [UKEAT 03493/06] ("the EAT judgment"), which was handed down on 27 September 2007.
- The claimant appealed to this court against decision (e) as she contended that she was entitled to long-term retirement compensation under the Crombie Regulations. By a judgment handed down on 19 November 2009 and with the neutral citation number ([2007] EWHC 2717 Admin) ("the 2007 judgment"), I allowed the claimant's appeal but I remitted the case to a differently constituted Employment Tribunal to deal with some issues, which had not been considered properly by the original Employment Tribunal. These matters entailed consideration of regulations 3(1)(b) and 12(1)(c) of the Crombie Regulations. After the matter had been remitted, an Employment Tribunal sitting in London held by a decision dated 17 April 2009 ("the 2009 decision") that it would allow the claimant's appeal against the respondent's decision to refuse long-term compensation in accordance with the Crombie Regulations and it duly set two days aside to deal with remedies, which means the quantum of the compensation. The respondent now appeals against the 2009 decision contending that the Employment Tribunal had failed to apply regulations 3(1) (b) and 12(1) (c) of the Crombie Regulations correctly.
- As will be seen, the respondent is making a very large number of criticisms of the 2009 decisions and has put in very lengthy skeleton arguments. Although very many of the respondent's criticisms even if accepted could not lead to the appeal being successful, I have decided to deal with as many of them as justified comment in the hope that there might perhaps be no time spent hereafter in contesting this case, which has so far over a period of almost four years been the subject of two hearings before the Employment Tribunal, one hearing before the Employment Appeal Tribunal and two hearings in the Administrative Court. That explains the length of this judgment but is should add that insofar as a point raised by the respondent is not referred to in this judgment, it must not be thought that it has not been considered by me.
II. The Background and the Issues
- The detailed facts leading to this dispute can be found in the EAT judgment. I will summarize them in so far as they are necessary for understanding the issues arising on the present appeal bearing in mind that a critical issue on liability is whether the claimant was at two different times providing assistance to "the holder of the office of justices' clerk in the performance of duties of that office". The claimant, who is a qualified solicitor, commenced employment with the Magistrates' Court Service in 1982, initially in Bournemouth and later at Newham Magistrates Court before in July 1993 being appointed to the post of Court Clerk, later called Legal Advisor at Wimbledon Magistrates' Court again as a justices' clerks' assistant, which remained her contractual position during her employment. Mr Andrew Nicholson was then also a court clerk. The role of the court clerk was primarily to sit in court with the justices, and also to advise them as to the law, procedures and practices applicable to the cases before them. There were also a number of out-of-court duties as well. Mr Eric Packer was also then a justices' clerk and he remained in that position until August 2002.
- The way in which Magistrates Courts were conducted at that date was governed by the Justices of the Peace Act 1949 ("the 1949 Act") which created a Magistrates' Courts Committee ("MCC") for each of a number of designated areas. The 1949 Act replaced the old system under which justices' clerks were lawyers in private practice who only worked part-time as a clerk. He or she was then solely responsible for running the courts and he or she was then paid from the fines and court fees which he or she had collected.
- Wimbledon Magistrates' Court was within the jurisdiction of the Merton MCC, which had executive responsibility for the funding and for the administration of its local magistrates courts including appointing and paying the justices' clerks. The 1949 Act did not set out the duties and responsibilities of a justices' clerk, save that he or she was a collecting officer and the person, who continued to be the person answerable for the performance of all judicial and administrative functions necessary for the proper operation of the court. After 1970, the Justices' Clerks Rules authorised things done by a single justice to be done by a justices' clerk, who was entitled to delegate those duties to legal advisors. Consequently Mr Packer authorised his legal advisors to exercise them.
- Matters changed on 1 April 1995 when section 24D of the Justices of the Peace Act 1979 ("the 1979 Act") came into force by an amendment contained in the Police and Magistrates' Courts Act 1994 and pursuant to it, the MCC was to appoint a justices' chief executive ("JCE"), which was a new post created by the amendment. Consequently, the Merton MCC with the approval of the Lord Chancellor appointed Mr Packer to the post of JCE and thus he held the posts both of justices' clerk at Wimbledon Magistrates Court and of JCE at that court which was the only magistrates' court in Merton. The JCE took over the role of acting as a collecting officer from the justices' clerk but of course that was only the position which prevailed while the JCE post continued.
- The JCE's general responsibilities under the statute were to act as clerk to the MCC and to "carry on the day to day administration of the courts for the area to which the committee relates". By section 24E (3) of the 1979 Act, the JCE had a duty "to make arrangements" for legal "discussions" among the justices' clerks in the MCC area.
- It was the MCC's duty "to provide courses of instruction" to the justices' clerks and to its staff in the area (section 22A (3) of the 1979 Act). This provision was repeated in section 31 of the Justices of the Peace Act 1997 but according to the Employment Tribunal, there was no evidence that Merton MCC delegated its training function to Mr Packer as JCE. If it did, his duty as JCE to train justices' clerks and MCC staff was distinct from his duty as justices' clerk at Wimbledon Magistrates' Court to train the justices there in accordance with section 28(3) of the 1979 Act. Section 41(4) of the Access to Justice Act 1999 provided first that the JCE was to make arrangements for discussions about law among justices' clerks "in particular with a view to securing consistency in the advice given by them to justices about such matters", while under section 41(3) of that Act, the JCE was required to "allocate responsibility for what falls to be done in the exercise of his function among justices' clerks and the staff of the committee".
- In consequence, the Employment Tribunal held that Mr Packer was required to delegate tasks of his JCE's functions to himself as well as to his assistants and "it appears he had to delegate tasks to the justices' clerk and his or her assistants at each of the courts in the Merton MCC area" [11].
- The general powers and duties of a justices' clerk were set out in section 28 of the 1979 Act. By section 28(3), the functions of a justices' clerk were to "include the giving to the justices.. advice about law, practice or procedure on questions arising in connection with the discharge of their or his functions" even when not attending on them personally by sitting in court with them. The Employment Tribunal concluded that Mr Packer's undisputed evidence was that his obligations as justices' clerk to train the justices was a function of his duty to advise them out-of-court and he had been instrumental in ensuring that the justices, who sat at Wimbledon, received regular training.
- The duties vested in the justices' clerk were defined by Mr Packer as any matter "touching on the administration of justice" or the judicial function and so Mr Packer as the justices' clerk was responsible for the provision of secure docks in the court room at Wimbledon Magistrates' Court. The justices' clerk managed the staff and provided the justices with pastoral care as well as being responsible as had always been the case, for running the court and being answerable in all of its functions save between April 1995 and April 2001 when those functions belonged to the JCE. These facts were found by the Employment Tribunal in paragraph 12 of its Reasons and they have not been the subject of the present or any appeal.
- Following a competition held on 1 July 1994, the claimant was also appointed to the post of training manager at Wimbledon Magistrates' Court and that required her to fulfil the role of training manager in addition to her existing duties to assist the justices' clerk and to give legal advice. The Employment Tribunal found that " formally, this was a duty delegated to her by Mr Packer who was responsible for training the justices" [14]. In this capacity, the claimant devised and drafted annual training programmes for the Wimbledon bench and she then implemented and organised the appropriate training sessions for the one hundred or so justices. It was also necessary for her to commission speakers for the training sessions, to keep the training records, to undertake training assessments and to prepare reports for the Bench Training and Development Committee as well as to attend its meetings. The claimant had responsibility for formulating and for publishing a staff training programme as well as providing annual training certificates for justices and being responsible for the progress of any trainees.
- In 1996 Mr. Whitehead, who was the deputy justices' clerk/deputy JCE, retired and he was not replaced but his duties were shared and added to those of the claimant, of Mr. Nicholson and of Ms Preece. The claimant undertook responsibility for the premises and grounds while she shared responsibilities for personnel with Ms Preece, for health and safety with Mr. Nicholson and for financial management with Ms Preece and Mr. Nicholson. Indeed, on 1 July 1996, Mr Packer authorised the claimant and Mr. Nicholson to act as clerks to the justices so that they either might on his direction or in his absence act as his deputy and carry out any of his duties. On that day, the claimant became Director of Executive Services, Policy and Training and she was referred to as deputy JCE, with Ms Preece becoming Director of Finance, Administration and Information Technology and Mr. Nicholson Legal Team Manager. The claimant received a modest salary increase and a job description. It is of great importance in the determination of this appeal that he office of JCE in each area was abolished with effect from 1 April 2001 by which time the MCCs had been abolished and they were replaced by the Greater London Magistrates' Courts Authority ("GLMCA"), which had responsibility for all the Magistrates Courts in Greater London, including Wimbledon Magistrates Court. After Mr. Packers' post as JCE at Merton came to an end on 31 March 2001, his only post was his remaining post as justices' clerk at Wimbledon Magistrates Court. The Employment Tribunal found that his executive functions of strategic planning, hiring and firing and his executive services as well as his role as clerk to the MCC and his attendance at MCC meetings also ceased. The Employment Tribunal found that he "remained in accordance with his position as justices' clerk, the person who ran the court and was answerable for the performance of all its functions" [35]. Mr. Packer was suspended in August 2002 and although he was later exonerated, he never returned to working for the Court Service. After that occurred, the Employment Tribunal found that the claimant spent more days sitting in court. The Employment Tribunal found that of Mr. Packer's duties after his suspension, "Mr. Nicholson dealt with correspondence about court business and the claimant dealt with the rest" [34].
- In 2002 and 2003, the Greater London Magistrates' Courts Authority ("GLMCA"), the respondent's predecessor, proposed a re-structure hierarchy of justices' clerks in which clerks to the justices were to be replaced by regional justices' clerks and deputy justices' clerks were to be replaced by Bench Legal Managers ("BLM"s), who would be responsible for heading the legal team at each court.
- The claimant was ring-fenced for a BLM position and she was one of two competitors in Merton Magistrates' Court for that position. On 2 June 2003, the claimant began a period of sick leave, which together with maternity leave lasted until 28 February 2005. While the claimant was off sick on 29 June 2003, Mr. Nicholson was offered the BLM position at Wimbledon and on 1 July 2003, the respondent wrote to the claimant stating that this had occurred. The respondent did not offer the claimant alternative employment at any time thereafter.
- On 29 February 2004, before the claimant had returned to work after her sick leave, she began a period of maternity leave. On 22 February 2005, the claimant's employers wrote to her explaining that her former role had been removed from the establishment. They sent a further letter on 22 March 2005 to the claimant explaining what would happen on her return to work.
- The claimant was due to return to work on 7 April 2005, but on 6 April 2005 she resigned claiming that she had been unfairly constructively dismissed. As I have explained, this claim, amongst others made by her was upheld by the Employment Tribunal and later by the Employment Appeal Tribunal.
- She also made a claim under the Crombie Regulations, which were made pursuant to the provisions of section 42 of the 1949 Act. The basic entitlement provisions under the Crombie Regulations are set out in Part II of them and in particular in regulations 3 to 5. Regulation 3 sets out the persons who can claim compensation. One of the two issues raised on this appeal is whether the claimant falls within regulation 3 because this question had been remitted to the Employment Tribunal by the order made pursuant to the 2007 judgment.
- The main gateway provision in the Crombie Regulations (reg. 3(1)) requires the claimant to satisfy one of two tests and of those, the only one which was relevant was that she "was employed in assisting the holder of the office of the justices' clerk in the performance of the duties of that office on 2 February 1995" and also "immediately before the material date." It is not in dispute that so far as the claimant is concerned, the material date is 1 July 2003. There was, and continues to be, a dispute between the parties as to whether the claimant satisfies this qualifying requirement at both or either of these dates. The claimant contends that she does but that is disputed by the respondent. I will return to consider in Section III below whether the respondent is correct in contending that the Employment Tribunal erred in concluding in the 2009 decision that the claimant satisfies the requirements in regulation 3 (1) of the Crombie Regulations.
- There is a further dispute as to whether the Employment Tribunal was correct in concluding that the claimant's claim did not fail or have to be reduced in accordance with Regulation 12(1) (c) of the Crombie Regulations, which sets out factors to be taken into consideration in determining payment of long-term compensation. I will return to consider this dispute in Section XI below.
III Regulation 3 — The Gateway Provision
- Regulation 3 of the Crombie Regulations, so far as relevant, provides:
"(1) These Regulations shall apply to any person who-
….
(b) was employed in assisting the holder of the office of Justices' clerk in the performance of the duties of that office on 2nd February 1995 and either-
(i) remains so employed, or
(ii)…
immediately before the material date.
(2) ......"
- In making her Crombie compensation claim, it has been the claimant's case that, both on 2 February 1995 and immediately before the "material date" (1 July 2003), she was employed in assisting the holder of the office of justices' clerk "in the performance of the duties of that office". These italicised words are of substantial importance in determining this appeal as I will explain.
- Unfortunately, there was, as I will explain, a serious misunderstanding shared by all lawyers in all proceedings up to and after the time of the 2007 judgment relating to the time when there was a JCE in post in Merton. In the 2007 judgment, I concluded in relation to the issue of whether the claimant satisfied regulation 3(1)(b) of the Crombie Regulations that:-
(1) its purpose of the provision was to ensure:
"...that a person who is spending all or nearly all his or her time assisting the Justices' clerk in performing these functions [i.e. the functions of the office of justices' clerk] should be entitled to the same benefits as somebody who does that work and has the job title of justices' clerk. Second to qualify under the regulations, such an applicant has to be more or less performing the tasks of the justices' clerk even though he or she does not have that job title and nothing less will qualify under regulation 3. Third, it cannot be right that the benefits under the regulations should be conferred on somebody who is only performing some of these functions while the majority of his or her work is spent performing duties other than assisting the clerk." [46];
(2) it was:
"clear from the findings of the Employment Tribunal that Mr Packer held two offices at the Magistrates' Court at Wimbledon being both the justices' clerk and justices' chief executive and the Crombie regulations only relate to the former functions." [47];
(3) in order to carry out the exercise required by reg.3(1)(b):
"...the Employment Tribunal had to consider at both 2 February 1995 and [1 July 2003]:
(a) what the claimant did which was providing assistance to the holder of the office of justices' clerks in the performance of the duties of that office but also
(b) what other duties the claimant performed or was required to perform
and then
(c) whether the claimant's employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices' clerks in the performance of the duties of that office in the light of the proportion of work which constituted assistance to the holder of the office of justices' clerks in the performance of the duties of that office to the other duties the claimant performed or was required to perform." [49]
(4) the Employment Tribunal had not appreciated that:
"...it had to consider in the words of Carnwath J whether the claimant's employment was "wholly or predominantly devoted to provide such assistance" to the duties of justices' clerk of Mr. Packer rather than in his role as the justices' chief executive." [51]
and that:
(5) the Employment Tribunal erred in that it:
"(a) did not appear to decide how often at each of the two relevant dates the claimant was required to deputise for Mr Packer and to distinguish between the duties of Mr Packer as justices' clerk and as justices' chief executive when it concluded that she effectively deputised for him in their words in 'all aspects of his duties and powers';
(b) failed to consider at each of the two relevant dates what duties the claimant performed or was required to `perform other than providing assistance to the holder of the office of justices' clerk in the performance of the duties of that office. This was required under stage (b) which I set out in paragraph 49 above;
(c) appeared to consider that they only had to consider whether the assistance to the justices' clerk was appreciable and not negligible. It will be recollected that Carnwath J specifically rejected this approach in the Berkshire Judgment [to which reference is made in paragraph [4] above]" ; and
(d) omitted to decide at each of the two relevant dates at stage (c) [which I set out in paragraph [3(c)] above], the critical question of whether the claimant's employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices' clerk in the performance of the duties of that office in light of the proportion of work which constituted assitance to the holder of the office of justices' clerk in the performance of duties of that office to the other duties the claimant performed or was required to perform" [52].
- So I remitted the outstanding issue as to whether the claimant satisfied regulation 3 (1)(b) of the Crombie regulations to a differently constituted Employment Tribunal [59]. If she did, then the Employment Tribunal had to consider for the first time the Regulation 12 issue to which I will turn in Part XI below.
- At the time of the hearing and as at the time of the 2007 judgment, I had been informed that as at both 2 February 1995 and 1 July 2003, there was somebody performing the role of JCE at Wimbledon Magistrates' Court, namely Mr. Packer. This was an important factor because as I explained in the passages set out in paragraph 26[4] and [5] above, I considered that the Employment Tribunal had erred in its 2006 decision by failing to consider whether the claimant was assisting Mr. Packer in his functions as a justices' clerk or as the JCE at the two relevant dates. By the time of the Employment Tribunal hearing in 2009, it had been realised very belatedly that this was a major error as nobody had performed that JCE role at either 2 February 1995 or immediately before 1 July 2003, which were of course the critical relevant dates. Mr. Packer had performed that JCE role but only from his appointment on 1 April 1995 until 31 March 2001 which was when the GLMCA came into existence.
- Thereafter, the functions of the JCE at Merton and a Wimbledon Magistrates Court ceased and so Mr. Packer ceased to perform those functions as a JCE and the claimant could not therefore have been assisting him in those functions. This meant that the matter which had been remitted to the Employment Tribunal in the 2007 decision could not be resolved but instead they correctly looked to see if the claimant was at the two relevant dates "employed in assisting the holder of the office of Justices' clerk in the performance of the duties of that office". For the avoidance of doubt, I should say that is the issue, which I would have remitted to the Employment Tribunal in the 2007 judgment if I had known the true position.
- I must express my surprise and great disappointment that all the lawyers had been allowed to work under the false impression that Mr. Packer was acting as the JCE at either or both of the material dates. After all, the respondent (unlike the claimant and her lawyers) must have had access to all the relevant information but for some unexplained reason, regrettably his legal advisers for reasons, which still have not been explained, failed to use it and they thereby caused all parties to act under a serious misunderstanding at the hearings leading up to the 2007 judgment.
- In consequence, Ms Joanna Heal counsel for the claimant contends that the basis on which the matter was remitted to the Employment Tribunal has fallen away and that I should therefore immediately dismiss the appeal. I am unable to agree because as the Employment Tribunal in 2006 had not considered this matter, the issue still remained as to whether at both the relevant dates and in the light of the test propounded by Carnwath J and to which I referred in paragraph 26(4) (d) above, "the claimant's employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices' clerk in the performance of the duties of that office in light of the proportion of work which constituted assitance to the holder of the office of justices' clerk in the performance of duties of that office to the other duties the claimant performed or was required to perform". This required consideration by the Employment Tribunal of what "the duties" the office of justices' clerk entailed, which is an exercise, which as I will explain, the Employment Tribunal sought to perform and which I will consider in section V below.
IV The Tribunal's Decision and the Issues on this Appeal.
- As a result of the remittal and the way in which the parties put their cases, according to Mr. Phillip Coppel QC counsel for the respondent, the issues that the Employment Tribunal had to determine were:-
(1) As at each of 2 February 1995 and immediately before 1 July 2003, was the claimant employed in assisting the justices' clerk at Wimbledon Magistrates' Court (a Mr Eric Packer) in the performance of those of his duties that belonged to the office of justices' clerk? Under regulation 3(1)(b) of the Crombie Regulations, this is a pre-condition for benefits under those Regulations.
(2) The extent to which the claimant , since receiving notice that her office was to be terminated (i.e. after 22 February 2005), had sought suitable employment. Under regulation 12(1)(c) of the Crombie Regulations, this was a factor to which the Employment Tribunal had to have regard both for the purpose of determining whether the Respondent should receive any long-term compensation under those Regulations and, if so, for the purpose of determining the amount of that compensation.
(3) The emoluments that the claimant might have acquired by accepting other suitable employment that, after 22 February 2005, had been offered to her. Under regulation 12(1)(c) of the Crombie Regulations, this was another factor to which the Employment Tribunal had to have regard both for the purpose of determining whether the claimant should receive any long-term compensation under those Regulations and, if so, for the purpose of determining the amount of that compensation.
(4) The emoluments that the claimant had received in respect of work undertaken by her since 6 April 2005 (i.e. the last date of her employment with the Respondent). Under regulation 12(1)(b) of the Crombie Regulations, this was a factor to which the Employment Tribunal had to have regard both for the purpose of determining whether the claimant should receive any long-term compensation under those Regulations and, if so, for the purpose of determining the amount of that compensation.
(5) The other circumstances of the claimant 's case that were relevant in determining her claim for long-term compensation. Under regulation12(1)(e) of the Crombie Regulations, the Employment Tribunal had to have regard to all the other circumstances of the claimant 's case (such as seeking or securing alternative employment) both for the purpose of determining whether she should receive any long-term compensation under those Regulations and, if so, for the purpose of determining the amount of that compensation.
(6) Whether, having regard to the factors set out in regulation 12(1) of the Crombie Regulations, the respondent was obliged to make a payment for long-term compensation for loss or diminution of emoluments to the claimant; and that
(7) If there was an entitlement to long-term compensation, the amount of that compensation.
- In summary, the Employment Tribunal by its 2009 decision concluded that:-
(1) as at both 2 February 1995 and immediately before 1 July 2003, the claimant's employment was predominantly devoted to assisting the justices' clerk in the performance of those of his duties that belonged to the office of justices' clerk. In reaching that conclusion, the Employment Tribunal decided that (a) as to the position at 2 February 1995, the office of JCE had not been created and Mr. Packer held the post of justices' clerk and the claimant who was contracted to act as his assistant predominantly performed assistance to the justices' clerk in the performance of the duties of that office; (b) as to the position immediately before 1 July 2003, there was no longer a JCE and the position was the same as 2 February 1995 in respect of the nature of the claimant's duties; and (c) in any event as to the position at immediately before 1 July 2003, the Employment Tribunal had in accordance with the parties' agreement to form an "impression" of what the claimant did and this led to the conclusion that her employment "was predominantly devoted to providing assistance to the justices' clerk in the performance of the duties of that office" [62].
(2) since receiving notice that her office was to be terminated (22 February 2005), the claimant had taken all reasonable steps to seek suitable employment as a BLM [51]. The Employment Tribunal explained first that the employment to be sought by the claimant under that regulation in the terms applicable in the new structure was as a BLM, which was the position equivalent to justices' clerk or an assistant to a justices' clerk in the old structure at Wimbledon Magistrates Court or elsewhere in South West London and second that is the employment she sought [65].
(3) the claimant had not been offered other suitable employment as a BLM after 22 February 2005 [47]. In particular, the Tribunal rejected the respondent's contention that the offers of employment which it had made to the claimant were to be taken into account in determining whether the claimant should receive any long-term compensation under the Regulations. It "concluded that the claimant had done all she could to seek suitable employment" [66.3].
(4) the claimant was entitled to long-term compensation and the amount would be considered at a remedies hearing for which two days were required. Thus issues (4) to (7) in paragraph 32 above were quite properly remitted to a further remedies hearing.
- In reaching these conclusions, Mr. Coppel contends that the Employment Tribunal made a number of errors of law, which are in varying degrees inter-related. Apart from the new ground of appeal to which I referred in paragraph 30 above (which was that the Employment Tribunal had not asked itself whether at each of the relevant dates " the claimant's employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices' clerk in the performance of the duties of that office in light of the proportion of work which constituted assistance to the holder of the office of justices' clerk in the performance of duties of that office to the other duties the claimant performed or was required to perform"), the respondent's grounds of appeal may be divided into the following grounds, which are that :-
(1) The tribunal wrongly equated any duty performed by the person who held office as Justices' clerk as being a duty of that office and wrongly identified those duties.
(2) The tribunal's reasoning is, moreover, self-contradictory.
(3) The tribunal wrongly excluded evidence adduced by the respondent as to the duties of the office of a Justices' clerk.
(4) The tribunal relied on its own speculation in deciding issues, preferring that to first-hand evidence.
(5) The tribunal's assessment of issues was founded upon errors.
(6) In reaching its conclusions under regulation12(1) of the Crombie Regulations, the tribunal's exclusion of the employment opportunities for the claimant in the Court Service was contrary to principle and perverse.
(7) The tribunal wrongly interpreted "suitable" in regulation 12(1)(c) of the Crombie Regulations such as to mean only employment as a justices' clerk or assistant to a justices' clerk in the same place or locality as the original employment.
(8) In considering whether the claimant should be paid long-term compensation under Part IV of the Crombie Regulations and, if so, the amount of that compensation, the tribunal omitted to consider the factors spelled out in regulation12(1)(b) and 12(1)(e), despite the respondent having in its written outline final submissions identified each of them as a relevant issue that had to be determined by the tribunal.
Ground (8) relates to an issue of quantum, which the Employment Tribunal has properly remitted for consideration at the remedies hearing and so I will not say anything more about it. I will start by considering the new ground because that relates to a decisive issue, which overlaps with some of the remaining grounds of appeal.
V The New Ground of Appeal
(i) Introduction
- This is the ground which Mr. Coppel raised in his oral submissions although it had not been included in his very detailed written skeleton argument and it was that the Employment Tribunal had not dealt with the matter raised in paragraph 49(b) of the 2007 judgment to which I referred in paragraph 25 above. In other words, he was saying that the Employment Tribunal had not considered whether the claimant's employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices' clerk in the performance of the duties of that office in the light of the proportion of work, which constituted assistance to the holder of the office of justices' clerk in the performance of duties of that office when compared with the other duties the claimant performed or was required to perform.
- As Ms Heal had no warning of this ground, I readily accepted that she was at a disadvantage and so I was concerned as to whether to reject this ground of appeal. Nevertheless, in the light of written submissions submitted by Ms Heal after the oral hearing on 25 November 2009 and Mr. Coppel's further written submissions served on about 16 December 2009, it seemed fair to deal with this ground but there are seven points which should be made at this juncture.
- First, it is common ground that as on 2 February 1995, which was the first of the two material dates, Mr. Packer to whom the claimant was an assistant did not hold the position of a JCE, which had not then been created. He was solely a justices' clerk and so he could not be performing the functions of JCE. Therefore, the claimant could not have been delegated the duties of a JCE. That means that the respondent cannot contend that at that time, Mr. Packer or the claimant were or could have been performing the functions or the duties of the job of a non-existent JCE job as there were then no JCE duties. To do otherwise, would be working on a fictitious basis. As I will explain in paragraphs 39 to 41, the fact that the duties of the justices' clerk were also vested in the MCC is irrelevant in determining whether what the claimant did was predominantly assisting the holder of the office of justices' clerk in the performance of the duties of that office of justices' clerk.
- A. Second, the position at the second material date, which was immediately before 1 July 2003, was that Mr. Packer had ceased to be JCE in April 2001 and after that time, there was no JCE post at Wimbledon Magistrates Court nor in Merton and nor could there be one. The issue for the Employment Tribunal was therefore whether what the claimant did was predominantly assisting the holder of the office of justices' clerk in the performance of the duties of that office of justices' clerk and in determining it, is not relevant that any such duty was or might have been previously a duty of Mr. Packer as the JCE at Wimbledon Magistrates Court and in Merton. After all, the task of the Employment Tribunal was to look solely at matters as at immediately before 1 July 2003 and what were then the duties of the office of a justices' clerk because what was the position before April 2001 was irrelevant.
B. I am also unable to agree with the contention of Mr. Coppel that it is relevant that insofar as Mr. Packer carried on after 1 April 2001 performing functions that belonged to the office of the JCE, he was assisting the person who held the office of the JCE, who was the JCE of the GLMCA. Even if that accurately described what Mr. Packer was doing, it is not relevant that he was assisting the JCE of the GLMCA because regulation 3(1) (b) entails focussing solely on whether the claimant was assisting whoever was the justices' clerk "in the performance of the duties of [the office of justices' clerk]" .Therefore it is irrelevant that those duties emanate from the GLCMA or from any other source. I also fail to understand why it is relevant that the claimant was or might have been an employee of the GLMCA because the focus required by regulation 3 (1) (b) is not on this but on the fundamentally different issue of whether the claimant was assisting Mr. Packer "in the performance of the duties of [the office of justices' clerk]". Again the wording of the regulation is a complete answer to the complaints of the respondent.
- Third, another repeated and fundamental contention of Mr. Coppel was first that many of the duties of the claimant when she was assisting Mr. Packer were those of the MCC, which was in existence at 2 February 1995 but which had been replaced by the GLMCA in 2001 and second that it followed automatically that they could not therefore also be the duties of a justices' clerk. I do not agree as there is no such a clear distinction because the justices' clerks and the MCCs could both have the same duties at the same time but those could be performed at different levels in different ways. After all "the administrative responsibility for maintaining an efficient and effective service of magistrates courts is in general vested in the [MCC]" (Halsbury's Laws of England Volume 29(2) (4th Edition Reissue) Paragraph 612). In contrast, the justices' clerk was working at the "coal face" implementing the MCC's policy and directions and the duties of that office could include similar duties as those of the MCC. Indeed in any organisation, the same people could be performing the same duties at the same time but in different ways. For example, there must be a large number of people who have the duty of preserving the security of the Royal Courts of Justice ranging from the very senior officials and judges to the people on the gate.
- It must not be forgotten that the MCC did not work in the court buildings at Wimbledon Magistrates Court while the justices' clerks did. In many cases, it might be the duty of the MCC to give directions while it would be the duty of the justices' clerk to carry them out because the MCC was not working in the actual court. For example, the provision of court security was a duty of the MCC but it was also at the same time a duty of the justices' clerk "in the performance of the duties of that office" because as the Employment Tribunal explained at paragraph 19.1.2 of its Reasons:-
"We agreed with Mr. Whitehead [who was a former clerk at Wimbledon Magistrates Court] that security functions belonged to the justices' clerk, because the security of the courthouse and the activities of the ushers are matters touching on the administration of justice, in that the security of persons using and working at the court is critical for its efficient and safe operation, so it was the justices' clerks' function to see that secure docks were built."
- I therefore do not accept that the fact that something that was done by the claimant could not be part of her duty in assisting the justices' clerk "in the performance of the duties of that office" merely because it was also a function of the MCC. Indeed, the Employment Tribunal accepted that the justices' clerk and the MCC had administrative functions when it explained of the MCC that it:-
"8… had executive responsibility for funding administration of their local Magistrates Courts including appointing and paying the justices' clerk but the [1949] Act did not set out the duties and responsibilities of the Justices' clerk save as Collecting Officer, and he continued to be the person answerable for the performance of all judicial and administrative functions necessary to the proper operation of the court".
- Fourth, the respondent contended that many of the duties of the justices' clerk were those of the MCC immediately before 1 July 2003 but, as I have explained, the appropriate overseeing body was the GLMCA. I am unable to accept the respondent's complaints because the points made in paragraphs 39 to 41 above in relation to the MCC apply equally to the GLMCA. In other words, both the justices' clerk "in the performance of the duties of that office" and the GLMCA could have the same duties at the same time, It is noteworthy that Mr. Nicholson , who was the respondent's witness explained that after the termination of Mr. Packer's JCE role
"the justices' clerk [namely Mr. Packer] was the person…with overall responsibility for ensuring that we were doing what we were meant to be doing…An observer wouldn't notice a difference in what Mr. Packer did" [36].
- Fifth, another repeated contention of the respondent was that the Employment Tribunal wrongly deemed any duty of the person who held the office of justices' clerk as a duty of that office. This is simply not correct because as I will explain in paragraphs 54 to 61, the Employment Tribunal carefully evaluated all the functions in the claimant's job description to decide if the function which was delegated by Mr. Packer was a true duty of the justices' clerk "in the performance of the duties of that office" and then it carried out a separate and different exercise of looking at the entire issue as a matter of "impression". All these exercises, which are described in greater detail in paragraph 61 below, show why the respondent's case must fail.
- Sixth, the arguments of Mr. Coppel suggested that there was a readily available or easily discoverable list of the duties of a justices' clerk "in the performance of the duties of that office" but that is not the case save for a few limited functions such as acting as a collecting officer. The Justices of the Peace Act 1979 set out the powers and duties of the Magistrates' Courts Committee and it was the legislation in force as at 2 February 1995. As I have explained, section 28(3) stated that the duties included the giving of the advice to justices but this was not an exhaustive list of their duties because section 28(4) provided that:-
"The enactment of sub-section 3 above shall not be taken as defining or in any respect limiting the powers and duties belonging to a justices' clerk or the matters on which Justices may obtain assistance from their clerk".
- Seventh, the Employment Tribunal had to carry its own inquiries and to reach its own decision on what were the duties of that office and that entailed a factual analysis. The approach of the Employment Tribunal was to first consider what duty Mr. Packer assigned to the claimant and then whether each of such duties was a duty of the justices' clerk "in the performance of the duties of that office". I set out in paragraph 61 below the different ways in which the Employment Tribunal resolved this matter.
- As I have explained, the Employment Tribunal then considered an alternative way of resolving the regulation 3 issue and that was by ascertaining as a matter of "impression" (which was accepted by both counsel as appropriate), what proportion of the claimant's employment was predominantly devoted to providing assistance to "the holder of the office of justices' clerk in the performance of the duties of that office". In my view, that was a proper approach especially as both counsel at the hearing before the Employment Tribunal agreed that this should be adopted and I will now have to consider if it was carried out properly.
(ii) The Position on 2 February 1995
- It is necessary to stress that as at the first qualifying date specified in regulation 3 of the Crombie regulations, which was 2 February 1995, the post of JCE had not yet come into existence as the power of the MCC to appoint a JCE only came into force on 1 April 1995, which was almost two months after the critical date of 2 February 1995. At that time, the only post which Mr. Packer occupied was that of justices' clerk and there were no duties of a JCE at that time. The claimant was contracted to assist him and she could not, as the Employment Tribunal found, have been delegated or assigned any duties other than the duties of a justices' clerk, which were the only duties which he had. There was no evidence that she was asked to do anything else by Mr Packer. In those circumstances, the Employment Tribunal was entitled, if not obliged, to conclude as it did in paragraph 56 of its Reasons that on 2 February 1995:
"the claimant's employment was wholly devoted to providing assistance to the justices' clerk in the performance of his duties of that office".
- In reaching that conclusion, I have not overlooked an objection made by Mr. Coppel to this conclusion at another point in his submissions when he submitted that in 1995 under the various statutory provisions to which the Employment Tribunal had been directed, most of the administrative functions relating to the running of Magistrates' Court were vested in the MCC and that those functions were separate from those which belonged to the justices' clerk. I have explained in paragraph 39 why I do not accept that argument as both the justices' clerk in the performance of his duties of that office and the MCC could have the same duties.
- Mr. Coppel contended that the task for the Employment Tribunal was to identify to which of these functions of Mr. Packer the assistance rendered by the claimant belonged. He says that the Employment Tribunal avoided the issue because they assumed that everything done at the Wimbledon Magistrates Court was a function of the justices' clerk.
- I am unable to accept those criticisms because, as I will explain, the Employment Tribunal considered each of the duties of the claimant set out in her job description in order to ascertain if it was a duty of the justices' clerk "in the performance of the duties of that office". Although this related to the job description as at July 1996, I have no reason to believe that her duties were different in February 1995. Further and perhaps more importantly, the Employment Tribunal found that:-
"12. S 28 of the 1979 Act set [sic] out the general powers and duties of a Justices' clerk. By s 28(3), his functions were to "include the giving to the Justices'… advice about law, practice or procedure on questions arising in connection with the discharge of their or his functions..", even when not attending on them personally, i.e. when not sitting in court with them, and Mr Packer's undisputed evidence was that his obligations as justices' clerk to train the justices was a function of his duty to advise them out of court, and he had been instrumental in ensuring justices who sat at Wimbledon received regular training. In any event, the duties vested in the justices' clerk were defined by Mr Packer as any matter "touching on the administration of Justice" or the judicial function and so, for example, as a witness for the respondent told the Tribunal, Mr Packer as justices' clerk was responsible for the provision of secure docks in the court rooms at Wimbledon Magistrates Court. A justices' clerk managed the staff and provided the justices with pastoral care. The justices' clerk was responsible, as had always been the case, for running the court, and was answerable in respect of all its functions save, between April 1995 and April 2001, those belonged to the justices' chief executive. The tribunal found accordingly".
- I stress the finding that the justices' clerk (namely Mr. Packer) at the material times "was responsible, as had always been the case, for running the court, and was answerable in respect of all its functions". These findings of the Employment Tribunal identify the wide-ranging nature of the duties of the office of justices' clerk on 2 February 1995 in the performance of the duties of that office; there is no error of law in those conclusions. The claimant reported to Mr Packer and she assisted him. It is not surprising that in his third witness statement, Mr Andrew Nicholson, who had worked as a Court Clerk at Wimbledon Magistrates Court since 1989 and who was a witness called by the respondent, said that:-
"In 1995 [the claimant] was located within the legal advisors' office. While she was responsible for training, she was also in court fairly regularly and dealing with many of the queries relating, for instance, to legal aid, applications to adjourn cases etc. Most aspects of her role at this date were assisting the Justices' clerk".
- So with regard to the position at 2 February 1995, there was no error in the decision of the Employment Tribunal as to what were the duties of a justices' clerk in the performance of the duties of that office. This is a complete answer to the complaint of Mr Coppel, which fails to appreciate the wide-ranging judicial and administrative duties imposed on Mr Packer in as the justices' clerk before he took over the post of JCE which had not come into existence until 1 April 1995, which was almost two months after the critical date of 2 February 1995. The challenges by Mr. Coppel do not show any errors of law but merely disagreements on factual issues, which cannot lead to this court allowing the respondent's appeal.
(iii) The position immediately before 1 July 2003
- By July 2003, there was no longer a JCE as that role had lasted from 1 April 1995 until 31 March 2001 when the GLMCA came into existence. This meant that until his suspension, Mr. Packer then resumed the duties of justices' clerk, which was his only job and as his appointed assistant, the claimant could then only perform assistance to Mr. Packer as the justices' clerk in the performance of the duties of that office. Mr. Coppel contends that many of the functions of the claimant in which she was assisting the justices' clerk with were concerned with the performance of his duties as a JCE but that cannot be right because as at 1 July 2003, there was no longer a JCE. So Mr. Coppel's point is based on a false assumption and it must therefore be rejected. On that basis, the case for the respondent on the regulation 3 point in relation to the position on 1 July 2003 must fail. Indeed even if after the abolition of the post of JCE, the justices' clerk who the claimant was assisting was performing functions which he had previously performed as a JCE that is irrelevant because those duties were by then the duties of a justices' clerk "in the performance of the duties of that office". After all, it is difficult to see who else could have performed those duties.
- The Employment Tribunal decided to look at the nature of the claimant's functions and work in order to ascertain if she was providing assistance to the justices' clerk in the performance of the duties of that office or of the offices of a JCE, which as I have explained was a false basis.. The Employment Tribunal considered carefully each role in the claimant' written job description dated 1 July 1996, in order to see whether in performing each duty, the claimant was assisting the holder of the office of the justices' clerk in the duties of a JCE or of a justices' clerk. This exercise of considering what were functions of the office of justices' clerk and of the office the JCE is only relevant if I am wrong in holding first that nobody who the claimant was assisting could have been the JCE at either of the two relevant dates; second that the claimant could not then have been assisting a JCE with those duties; and third that any duties of the JCE had become duties of the justices' clerk "in the performance of the duties of that office" when Mr. Packer's JCE job ceased to exist and he was solely the justices' clerk. Indeed as the Employment Tribunal found in accepting the evidence of Mr. Nicholson, who had worked at Wimbledon and who was a witness for the respondent and which was that after Mr. Packer ceased to be the JCE that "an observer wouldn't notice any difference in what Mr. Packer did" [36]. That must also have applied to anybody who carried out the office of justices' clerk because the duties of the JCE in the performance of the duties of that office became those of the justices' clerk.
- The Employment Tribunal found that the following roles in the claimant's job description constituted a justices' clerk function and they were those of: -
(a) "undertaking the management, general supervision and organisation of the staff of the court ushers, trainee, court keeper and court security staff including the deployment, discipline and counselling of those members of staff" [19.1.2];
(b) Undertaking the annual performance and development appraisals of the court ushers, trainee, court keepers and court security staff within the terms of the performance and development scheme [19.2.2];
(c) Training the justices [19.3.2];
(d) Liaising in relation to the training of justices with the regional training and development officer with regard to existing training programmes and any training requirements not provided for in that programme [19.4.2];
(e) Identifying staff training and development needs for the justices [19.5.2];
(f) Devising, updating and monitoring a comprehensive training package for any trainee [19.6.2];
(g) Setting general objectives in respect of staff supervised by the post holder [19.7.2];
(h) Setting general objectives in respect of staff supervised by the post holder and monitoring the effect of staff performance against the Management Information System indicators but insofar as it had to be consider in relation to the effect upon the court's budget, it was a JCE function [19.9.2];
(i) Tendering legal and procedural advice to Justices and undertaking court clerk duties in and out of court [19.10.2];
(j) Assisting with all out of court responsibilities of the legal team [19.12.2];
(k) Being available on rota for duties in connection with weekend and bank holiday work and being available for call out in connection with staff and best practice requirements [19.13.2].
- The Employment Tribunal also found that certain duties in the claimant's job description were JCE functions, such as first part of the task of keeping the staff apprised of training facilities; second of keeping staff records relating to leave and leave entitlement in respect of all members of staff with whom the claimant had line management responsibility; and third of dealing with sickness policy and procedures.
- The Employment Tribunal also found that there were some duties in the claimant's job description, which straddled the functions of both justices' clerks and of the JCE such as attending and participating in directorate team meetings. In my opinion, the Employment Tribunal had considered the duties set out in the claimant's written job description document with scrupulous care deciding as the designated fact-finders which duties fell within and which fell outside the duties of the holder of the office of justices' clerk. The Employment Tribunal had heard the evidence relating to how all these tasks fitted in with the responsibilities of a justices' clerk. It is necessary to repeat again that the Employment Tribunal did not do what Mr. Coppel repeatedly complained of which was to regard everything that the claimant did as automatically being a duty of the justices' clerk, which is a complaint which I have rejected.
- After that, the Employment Tribunal proceed to consider the time spent by the claimant on the main duties of justices' clerk and they explained correctly that the claimant was employed as an assistant to the justices' clerk by her contract and she could be required to perform the duties of that office. The Employment Tribunal correctly concluded that the functions set out in the claimant's job description "..remained for her to do after 31 March 2001, could only have been functions vested or revested in the justices' clerk; only the justices' clerk was answerable for their performance and only Mr. Packer as justices' clerk could delegate them to her" [57.2]. This conclusion is to my mind also determinative of the issue and establishes that the claimant satisfies the requirements in the regulation 3 gateway as at or immediately before 1 July 2003.
- In my view, these conclusions were open to the Employment Tribunal as the designated fact-finders but they then proceeded to state in paragraph 58 that in case that conclusion was wrong, it would carry out a separate and alternative exercise of determining that the portion of the claimant's functions that belonged to each of Mr Packer's posts. Not surprisingly, they came to the conclusion that trying to calculate the predominant proportion of time spent by the claimant on different duties was "artificial" [59]. They decided in agreement with submissions made by both counsel for the claimant and for the respondent that they could not do that with arithmetical precision but that instead they needed to form what both counsel stated would be an "impression" founded on the whole of the evidence which included the determination of which duties in the claimant's job description fell within the function of a JCE or the justices' clerk and other aspects of the evidence.
- The Employment Tribunal then proceeded to carry out that exercise and they concluded that :
"61. We took into account the following matters:-
61.1 Our findings set out in paragraph 19 above [which are the matters set out in paragraphs 55 to 57 above].
61.2 Mr Whitehead carried out the roles both of deputy to the justices' clerk and deputy to the justices' chief executive. When he retired, his functions as deputy justices' chief executive went largely to Ms Preece. The remainder appear to have gone largely to the claimant, but some she shared with Mr Nicholson. Looked at in the light of those bare facts only, it would appear the claimant's functions as deputy to the justices' chief executive, even in the period 1 April 1996 to 31 March 2001, were unlikely to have predominated amongst all the functions she performed. After that date, the justices' chief executive's functions were "largely eroded".
61.3 Although in certain limited respects the claimant's recollection did not accord with the records, for example, in respect of the summonses to court she issued, yet generally her conviction that her main job was to assist the justices' clerk accords with our findings.
61.4 The claimant is a qualified lawyer and, from 1 April 1996, was deputy to the justices' clerk. Thus the GLMCA reasonably considered, at the time it decided on the new BLM/BOM structure for magistrates' courts, that such staff were judicial rather than administrative, so it ring-fenced her for a BLM position and invited her to a Crombie Seminar.
62. Accordingly we concluded, that immediately before 1 July 2003, the claimant's employment was predominantly devoted to providing assistance to the justices' clerk in the performance of the duties of that office".
(iv) Conclusions on the position immediately before 1 July 2003
- As I have explained, the person to whom the claimant was an assistant could only have been employed as a justices' clerk and could not have been a JCE as that job had been abolished and the duty of the justices' clerk was very wide-ranging as he or she was "the person answerable for the performance of all judicial and administrative functions necessary to the proper the proper operation of the court" [8]. On the basis that there were no JCE functions as that office had been abolished and the duties of a justices' clerk were as I have explained them to be, then the only work functions which the person to whom the claimant was an assistant could delegate to the claimant were those of the justices' clerk in the performance of the duties of that office. That is a complete answer to the claim but there are other answers. The Employment Tribunal considered that as at 1 July 2003 the claimant was predominantly devoted to providing assitance to the justices' clerk in the performance of the duties of that office. They reached that conclusion in a number of different ways, which were that they:-
i) considered the duties set out in the claimant's written job description document with scrupulous care deciding as the designated fact-finders which duties fell within and which fell outside the duties of the holder of the office of justices' clerk as I have explained in paragraphs 55 to 57 above;
ii) then assessed the time spent by the claimant on the main duties of justices' clerk and they explained correctly that the claimant was employed as an assistant to the justices' clerk by her contract and she could be required to perform the duties of that office;
iii) correctly concluded that the functions set out in the claimant's job description "..remained for her to do after 31 March 2001, could only have been functions vested or revested in the justices' clerk; only the justices' clerk was answerable for their performance and only Mr. Packer as justices' clerk could delegate them to her" [57.2]; and that they:-,
iv) agreed with both counsel that their answer must finally depend on the "impression" of the evidence and that impression was that the claimant was employed in assisting Mr Packer in the performance of the duties of his office as Justices' clerk. The Employment Tribunal found about 25% to 26% of the claimant's time was spent in court and about a further 20% on training duties and "rather more if the period leading up to a sick leave is taken into account"[59]. There was then further difficulty about deciding "whether the reminder of the claimant's justices' clerks' duties, added to the 45%, amounted to a predominant proportion especially as calculation was further complicated because there was no way to know what duties, in the period 1 April 1995 to 31 March 2001 Mr. Packer as JCE delegated to himself as justices' clerk and then as justices' clerk delegated to the claimant". The Employment Tribunal correctly took the view that any such exercise would be "artificial"[60] but it is noteworthy that the Employment Tribunal carefully classified the work that she did before it concluded that her employment "was predominantly devoted to providing assistance to the Justices' clerk in the performance of the duties of that office" for the reasons set out in paragraph 61 of its Reasons which I have quoted in paragraph 60 above.
- To succeed on this appeal, the respondent would have to show that there was an error of law in each of the two routes to their conclusions. I cannot detect any error of law in these conclusions especially as the respondent counsel accepted that the Employment Tribunal could reach a decision based on its "impression" which is what it did and such a conclusion was a matter of fact. So that it could only be successfully challenged if it was perverse but a finding will only be perverse if an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached (see Yeboah v Crofton [2002] IRLR 634 [12] and [93-95]). In my view, the detailed submissions of Mr. Coppel do no more than show disagreements on factual issues and they do not come close to identifying perverse findings or any errors of law by the Employment Tribunal. I have already explained in paragraphs 37 to 44 above why I reject other submissions of the respondent.
- I should add that I believe that a further way why the Employment Tribunal could have reached the same conclusion was that by relying on the evidence from the respondent's witness Mr. Nicolson which the Employment Tribunal accepted and explained when it said of it that: -
"After the cessation of Mr. Packer's [JCE] role 'the justices' clerk was the person...with overall responsibility for ensuring that that we were doing what we were meant to be doing.. An observer wouldn't notice any difference in what Mr. Packer did. The claimant continued to carry out many of the same functions, but 'The GLCMA did not interfere in courthouses at that stage' and the claimant do not report to the GLMCA"' [36].
VI. Ground 1 – Treating the claimant's assistance to Mr Packer after 1 April 2001 as necessarily being involved in assisting him in the performance of the duties of his office as justices' clerk.
- Many of the reason why I reject this ground have been explained in paragraphs 38 to 46 above and so I will not repeat those points. This complaint, which relates to the position at immediately before1 July 2003, is that the Employment Tribunal erred in considering that the regulation 3 issue required them to treat everything that Mr Packer did after 1 July 2001 as having been a duty of the office of justices' clerk. Mr Coppel stressed that regulation 3(1)(b) required the Employment Tribunal to consider not merely whether the claimant was employed "in assisting" the holder of the office of Justices' clerk but also whether such assistance was "in the performance of the duties of that office".
- It is said by Mr. Coppel that after 1 July 2001 an increasingly large proportion of the functions carried out at Magistrates Courts were by statute allocated to a person holding statutory office separate from that of justices' clerk which was that of JCE. He reminded me that between 1 April 1995 and 31 March 2001, Mr Packer held the offices of both justices' clerk and JCE at Wimbledon Magistrates Court but that with effect from 1 April 2001, the JCE for the GLMCA assumed the JCE functions for all the Magistrates Courts in the Greater London area. Those functions included the duties and powers that Mr Packer in his capacity as JCE for Wimbledon Magistrates Court had held on 31 March 2001.
- Mr Coppel contends that where a person at Wimbledon Magistrates Court or at any other Magistrates Court in the Greater London area assisted in the performance of functions that were as a matter of statutory allocation those of the JCE, that person was assisting the holder of the office of JCE in the performance of those duties of that office and not the duties of the office of justices' clerk. Thus it is said that in so far as Mr Packer performed functions that belonged to the office of JCE, these were not the functions of a justices' clerk and in so far as the claimant had helped him she was not doing it as an assistant to the justices' clerk. In other words, the case for the respondent is that the duties of the office of the JCE did not become and could not become duties of the office of justices' clerk. Mr Coppel says that it was wrong of the Employment Tribunal to treat everything that Mr Packer did after 31 March 2001 as being part of the duties of his office as the justices' clerk.
- It is said by Mr. Coppel that this mistake infected the decision of the Employment Tribunal when for example it stated for example that:-
"..37.. In our view, furthermore, it must follow that Mr Packer's functions which had been vested in him as justices' chief executive whilst he occupied that post, must have re-vested in him as justices' clerk if they continued to be carried out within the courthouse after the justices' chief executive role ended".
"57. After 1 April 2001 Mr Packer's role as justices' chief executive was functus officio. It had no further legal effect. Whatever he did, he did it as justices' clerk and the claimant could assist him only in that capacity. We have accordingly concluded, that, immediately before the material date the claimant's employment was wholly devoted to providing assistance to the justices' clerk in the performance of the duties of that office".
- I am unable to agree for four reasons. First, the job of JCE had disappeared and so had its functions by 1 April 2001 so Mr Packer was not performing any JCE functions thereafter. So it was a fiction to look at the position immediately before 1 July 2003 to see if he was performing any JCE functions. This is a fallacy in the respondent's case. Second, as I have already explained, it was common ground between counsel that the Employment Tribunal could and should as a matter of "impression" decide if the claimant's employment was predominantly devoted to providing assistance to the justices' clerk in the performance of duties of that office and that was a fact-finding exercise. The Employment Tribunal as the designated fact-finder was entitled to find in the claimant's favour on that ground and there was no error of law in that decision. Third, the mere fact the GLMCA took over the JCE functions does not mean that the work which Mr. Packer was doing was other than the duties of the justices' clerk in the performance of the duties of that office because, as I explained in paragraphs 40 to 42, the justices' clerk could have the same duties in the performance of the duties of that office as the MCC or the GLMCA had. They were performing those duties in different places with the MCC and the GLMCA being higher up the hierarchy and giving general instructions which the claimant was performing on the "factory floor"
- Fourth, the Employment Tribunal was correct in looking at the actual position after the JCE post was abolished to ascertain what Mr. Packer was obliged to do and then to ascertain if it fell within the duties of that office. That is precisely what the Employment Tribunal did when, as I have already pointed out, it explained in relation to evidence given by Mr. Nicholson that:-
"After the cessation of Mr. Packer's [JCE] role 'the justices' clerk was the person...with overall responsibility for ensuring that that we were doing what we were meant to be doing.. An observer wouldn't notice any difference in what Mr. Packer did. The claimant continued to carry out many of the same functions, but 'The GLMCA did not interfere in courthouses at that stage' and the claimant do not report to the GLMCA"' [36].
- The evidence showed that the duties of the justices' clerk were unclear and included not merely legal duties but management duties as was shown by the evidence given by the respondents' witnesses. For example, Mr Mark Eldridge, who was Operations Director for the Greater London Magistrates Courts Authority from November 2001 until April 2005, said according to the Chairman's notes of evidence that:-
"just because the justices' clerk has specific statutory duties, he may have other management duties, delegated by the JCE.. the statute is not an exhaustive account of what a justices' clerk does. The statute defines the boundaries, the principal expectations".
- Mr Andrew Nicholson gave similar evidence. He began working at the Wimbledon Magistrates Court in 1989 as a Court Clerk and had been the BLM at Wimbledon Magistrates Court from 1 July 2003 until April 2008. His evidence was that the functions of the justices' clerk had shifted from time to time and "in practice there were a lot of functions that belonged to one or other then. There was a grey area where it could be either".
- Not surprisingly, the Employment Tribunal concluded that:-
"19… We took into account as well that, although some functions are readily identifiable as justices' clerk's functions or [JCE's] functions, yet in respect of others, as Mr Nicholson acknowledged, the decision is blurred, or as Mr Packer put it, the function straddles the role… On the other hand, whatever role the claimant was undertaking, the evidence was plain that she always assisted Mr Packer".
- The Employment Tribunal considered that after Mr. Packer ceased to be a JCE, the claimant assisted Mr Packer and his successors in the performance of the duties of the office as justices' clerk. They reached that conclusion in a number of different ways, as I explained in paragraph 66 above.
- I have considered with care the criticisms made of those conclusions and neither individually nor collectively do they show any error in the reasoning of the Employment Tribunal. It must be stressed that in paragraph 19 of its Reasons (to which I referred in paragraphs 55 to 57), the Employment Tribunal explained clearly the many judicial functions that the claimant performed which were over and above time spent in court and training duties which were judicial such as assisting out-of-court responsibilities of the legal team, being available on a rota for duties. All this, to my mind, constituted a proper and fair exercise which enabled the Employment Tribunal to reach the decision which it did. Indeed, as the designated fact-finders the Employment Tribunal performed its purpose perfectly adequately and the complaints of Mr Coppel fail.
- An additional reason why I would reject many of Mr. Coppel's criticisms is that many of them relate to challenges to issues of fact but this appeal can only be allowed if there are errors of law unless the factual errors amounted to a perverse finding. A finding will only be perverse if an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached (see Yeboah v Crofton [2002] IRLR 634 [12] and [93-95]). The clear and carefully reasoned findings of the Employment Tribunal show that it is impossible to reach such a conclusion.
VII. Ground 2. Treating the claimant's assistance to Mr Packer on 2 February 1995 as necessarily being employed in assisting Mr Packer in the performance of the duties of his office of Justices' clerk.
- This ground is the same as the first ground except that it relates to the earlier date specified in regulation 3(1)(b) of the Crombie regulations. Many of the reason why I reject this complaint are set out in paragraphs 37 to 46 above and so I will not repeat them. Mr Coppel contends that the Employment Tribunal misunderstood the position when it concluded in paragraph 56 that:-
"On 2 February 1995 the office of [JCE] had not yet been created. Mr Packer held only the post of justices' clerk. He could not have assigned or delegated duties to the claimant other than the duties of a justices' clerk, and the claimant was contracted to assist the justices' clerk. Accordingly, we concluded that on that date, the claimant's employment was wholly devoted to providing assistance to the justices' clerk in the performance of the duties of that office".
- I considered this submission earlier when I dealt with the new ground of appeal in paragraphs 47 to 52. It is unnecessary to repeat the reasons, which are equally applicable in dealing with this issue but it is noteworthy that as at 2 February 1995, the post of JCE had not come into existence as the power of the MCC to appoint a JCE only came into force on 1 April 1995, which was almost two months after the critical date of 2 February 1995.
- As Ms Heal pointed out, the rejection of this ground also means that the appeal on the regulation 3 issue must be dismissed and that the remaining grounds relied on by Mr Coppel in relation to regulation 3 are irrelevant but I will deal with them briefly in case I am wrong.
VIII.Ground 3. Wrongly excluding evidence adduced by the Secretary of State as to the duties of the office of Justices' clerk.
- The respondent called as one of its witness Mr Julian Vantyghen, who was the justices' clerk for the eleven local justices area that formed the West Clerkship of London. Prior to that and between 1 January 2005 and 1 April 2008, he had been the Regional Justices' Clerk for the South-West London area and previously he had worked as various positions in the magistrates courts since 1998.
- When giving evidence on behalf of the respondent, Mr Vantyghen was asked questions as to the scope of the duties that belonged to a justices' clerk and those which belonged to a JCE both as at 1 April 1995 and in early 2003. According to the respondent's counsel, the purpose of these questions was to obtain evidence on the proportion of the time that the holder of the office of justices' clerk would in his experience take or require to perform each of these functions. This evidence was intended to answer evidence to the same effect, which had been given by Mr Packer.
- The claimant's counsel objected and the Employment Tribunal decided that the proposed evidence was inadmissible. It is noteworthy that Mr Coppel quite correctly accepts that if (as is the case) he loses on ground one, it would have made no difference to the outcome of this appeal had Mr Vantyghen's evidence been admitted. In other words, this ground has no independent life of its own and in consequence I will deal with this ground more briefly than I would have done if it was an issue, which would have had crucial or any importance in resolving this appeal.
- As I will explain, I consider that this ground of appeal must fail in the light of first the powers given to an Employment Tribunal to manage its proceedings; second, the absence of an order in this case permitting the calling of expert evidence; and third the absence of any direct knowledge of the matters in dispute on the part of this witness.
- Starting with the powers of the Employment Tribunal, Rule 10 of Schedule 1 to the Employment Tribunals (Constitution and Rules etc) Regulations 2004 empowers an Employment Tribunal to make orders as to the manner in which proceedings are to be conducted. Rule 14 (2) of those regulations states that an Employment Judge should not be bound by any rule of law or enactment relating to the admissibility of evidence in proceedings before the courts. Rule 14 (3) empowers the Employment Judge to conduct the hearing before him in the manner he considers most appropriate for the just handling of the proceedings. It is clear that these rules give the Employment Tribunal a very wide discretion.
- In this case, Regional Employment Judge Latham made a Case Management Order on 29 January 2008 requiring an exchange of witness statements and providing first that they would stand as evidence-in-chief of the relevant witness and second that no supplementary questions would be allowed thereon save as to matters raised by other witnesses in their written witness statements. At a further Case Management Discussion held on 23 March 2008, Employment Judge Lewzey ruled that a statement by Mr M Clark for the respondent relating to whether the claimant's functions were those of a justices' clerk or of a JCE was inadmissible as it consisted of expert evidence for which no leave had been granted.
- In the case of Mr Vantyghen, it was sought to ask him many supplemental questions-in-chief notwithstanding the terms of the order of Regional Employment Judge Latham. Mr Vantyghen was asked to work through the job description given to the claimant and then to allocate each duty to the work of a justices' clerk or of the JCE.
- In my view, this ground of appeal must be rejected not merely because the duties of the JCE are irrelevant for the reasons which I have sought to explain but also because the Employment Tribunal was quite entitled to consider that this evidence was not admissible for four reasons, which independently and cumulatively lead me to that conclusion. They were that:-
a) there was no evidence that Mr Vantyghen had any knowledge of the arrangements at Wimbledon Magistrates Court when the claimant worked there and so he did not have any first-hand knowledge;
b) in so far as he was seeking to give expert evidence, he did not have the necessary expertise;
c) his evidence was expert evidence and no leave had been granted for expert evidence to be adduced; and because
d) it would be unfair to the claimant if the evidence was adduced because no notice had been given of it and the only way that such unfairness could be remedied would be by adjourning the proceedings and that would cause unfair and unjustified delay.
IX. Ground 4. Preferring speculation to first hand evidence
- Mr Coppel contends that rather relying on evidence from different witnesses who worked at Wimbledon Magistrates Court, the Employment Tribunal instead preferred to rely on conjecture and upon its own experience, which had not been disclosed to the parties. In my view, Ms Heal is correct in contending that this amounted to an allegation of perversity because what is in fact being submitted is that the conclusions arrived at by the Employment Tribunal were against the weight of evidence. As I have already explained, it is, of course, settled law that the threshold for succeeding on such a ground is high as it ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached (see Yeboah v Crofton [2002] IRLR 634 [12] and [93-95]). I now turn to the specific allegations that are made.
(i) Training.
- It is said by Mr Coppel that the Employment Tribunal rejected the evidence of Mr Andrew Nicholson as to the time that the provision of the training would take but instead it explained that:-
"17.. the Tribunal members have significant experience of providing training, and were able to make use of that experience when we weighed the evidence. We found that preparing and then assessing training for the justices after its delivery was likely to have been a time-consuming activity… We considered that the training programme for the new Human Rights Act must on its own have taken the claimant a significant amount of time to prepare..".
- Mr Coppel contends that this conclusion was inconsistent with Mr Nicholson's oral evidence supported by contemporaneous documents.
- Another criticism which is made is that the Employment Tribunal "gave differential treatment" to the hours recorded for the training of the justices, which was characterised as a function of the justices' clerk while the training provided to administrative staff which was characterised as a JCE function. The Employment Tribunal stated in its decision that the training provided to the administrative and other staff was likely to have been less frequent than the legal training and "in any event not nearly as time-consuming as the preparation etc as the justices training". The Employment Tribunal also concluded that the task of "keeping staff appraised" could not have taken a significant part of the claimant's time.
- In my view, these criticisms have to be rejected for four reasons of which the first is that Mr Nicholson's evidence does not suggest little time was needed for training as all that he did say that was a good deal of the training was provided in packs. Second, knowledge of preparation of training is not a specialist knowledge and it is inevitable as the Employment Tribunal concluded in paragraph 17 of its Reasons that the preparation and assessment of legal training in rapidly changing areas of law is a time-consuming activity. Third, there is no error of law in treating training of administrative matters and legal matters differently and the Employment Tribunal with its expertise was quite entitled to reach the conclusions which it did. Fourth, members of the Employment Tribunal are selected because of their expertise in employment matters and they cannot be criticised for using this knowledge. In my view, there was no error of law or anything perverse in the conclusions reached on the issue of training especially on the effect of the Human Rights Act 1988 which the Chairman of the Employment Tribunal would also have received.
(ii) Court Clerks and legal advisors seeking advice from the claimant
- Mr Coppel contends that notwithstanding evidence from Magistrates at Wimbledon to the contrary, the Employment Tribunal preferred the evidence of the claimant that Court Clerks and Legal Advisors regularly went to her for advice taking into account that her office was on the same floor as the courts with the result that it was more likely than not that the claimant fielded as many queries as did Mr Nicholson.
- Again I must reject Mr Coppel's complaint bearing in mind first that both Mr Nicholson and Ms Powell recognised that they did not know where legal advisors actually went for advice; and second that the Employment Tribunal took into account the layout of the building about which they were given evidence relating to the accessibility of the claimant's office. After all, the task of the Employment Tribunal was to reach conclusions on facts and this is what they repeatedly did with ample reasons to justify their decisions.
- The same reasoning enabled the Employment Tribunal to conclude that it was convenient for the Justices to obtain pastoral advice from her especially in what they described as the claimant's "soft skills" about which there had been evidence. There was ample material to justify these conclusions of the Employment Tribunal.
(iii) Partisan approach
- This complaint of Mr Coppel is not that the Employment Tribunal was biased but that it made no adverse comment upon the credibility of the claimant although it made findings that contradict some of the evidence that she had given to them. It seems clear that the Employment Tribunal looked at the different evidence on a number of issues and then it reached its own conclusions. It cannot be criticised for not accepting all the evidence of the claimant on every issue and indeed it adopted a totally acceptable approach.
- In any event, the specific instances relied on by Mr Coppel do not show that the Tribunal should have made adverse comments on the credibility of the respondent. The case for the respondent fails to appreciate that an Employment Tribunal might not accept all the evidence of a witness without necessarily finding that witness not to be a credible on other issues.
(iv) Rebuking Ms Power and not the claimant
- The next criticism that is made is that the Employment Tribunal rebuked one of the respondent's witnesses Ms Sabina Power but did not rebuke the claimant. Again, the Employment Tribunal was entitled to reject the evidence of Ms Power because of the way in which she dealt with the assertion in her witness statement that she was "aware of speculation concerning the nature of [the claimant's] relationship with Eric Packer". It must not be forgotten that the Employment Tribunal had seen Ms Power being cross-examined and that it was both able and obliged to reach its own conclusions on her credibility and reliability. So there can be no valid criticism of the Employment Tribunal for this. In any event, it is noteworthy that it is not suggested, and indeed cannot be suggested, that if Ms Power's evidence had been accepted, it would have had any effect on the outcome of the case.
(v) Inadequate reasons
- Mr. Coppel contends that the Employment Tribunal did not give adequate reasons for its decisions to reject the evidence of the respondent. I do not agree as the Employment Tribunal complied with its obligations to explain why it reached its decisions, which does not extend to explaining precisely how it reached its conclusions on every point. After all the respondent knew full well why it lost and that is crucially important.
X. Ground 5. The Employment Tribunal's Conclusion found on Errors
- Mr Coppel contends that the Employment Tribunal reached conclusions which were based on errors relating to the hours that the claimant had spent on various activities. The first complaint is that in paragraph 23 of its Reasons, the Employment Tribunal noted that the claimant sat in court in 2003 about twice as much as she did in 1995. It is said by Mr Coppel that the claimant was in fact in court advising the Bench for over twice as many hours in 1995 as she did in 2003 by pro-rating the 1995 figures for the first five months of 2003 i.e. before the claimant went off on sick leave. This exercise leaves the figures according to Mr Coppel broadly equivalent. In response, Ms Heal points out correctly that although the Tribunal did make a factual error, the evidence was she sat more in 2003 than in 1995.
- Indeed, Mr Nicholson agreed this in cross-examination when it was put to him that once the 2003 figures were pro-rated to take into account the fact that the claimant was only at work for five months in that year, she had sat more in 2003 than in 1995. The position was that in 1995, she sat 397 hours while for the first 5 months of 2003 she sat for 191 hours, which gives an average of 38.2 hours a month. When this is grossed up to a 12-month period, it equates to 458.4 hours, which is significantly more than the figure in 1995. I agree with Ms Heal it is not of any great importance as to whether the claimant sat twice as much in 2003 as in 1995 because what really matters is that in both years, there were substantial periods of sitting by the claimant. Of course, the time that the claimant had off when she was sick had to be taken into account because when she was away ill, the obvious question to ask is what hours of work she would have worked had she not been away.
- The remainder of the criticisms made under this head relate to the way in which the Employment Tribunal characterised work done by the claimant and in particular whether it was a justices' clerks' function or a function of the JCE. In my view, most of these criticisms amount to disagreements on factual matters. In any event, they are based on the views of the respondent (which was rejected by the Employment Tribunal) that there was a clear definition of the functions of a JCE or the Justices' clerk. Furthermore, as I have explained, I do not regard the functions of the JCE as relevant. I therefore reject this criticism.
XI. The Regulation 12 issue
(i) Introduction
- Regulation 12 provides insofar as is relevant that:-
"(1) For the purpose of determining whether long-term compensation for loss or diminution of emoluments should be paid to any person and, if so, the amount of the compensation (subject to the limits set out in these Regulations) the determining authority shall, …have regard to such of the following matters as maybe relevant, that is to say - …
(b) the emoluments and other conditions, including security of tenure, whether by law or practice, of any work or employment undertaken by the person as a result of the loss of office;
(c) the extent to which he has sought suitable employment and the emoluments which he might have acquired by accepting other suitable employment, which, after he has received from the magistrates courts committee by whom he was employed either written notice that the office was to be terminated or written notice of termination of his office, has been offered to him in writing…
(e) all the other circumstances of the case".
- It is important to stress that regulation 12 gives the determining authority a wide discretion in determining first whether payment of long-term compensation should be made and if so, second how much should be paid because it requires them to "have regard to such of the following factors as may be relevant". There are two separate issues to be considered by the determining authority, which are first whether long–term compensation should be paid and, if so, second how much should be paid. The Employment Tribunal only dealt with the issue of whether long-term compensation was payable but it correctly adjourned the second issue of what remedy was appropriate, which would include consideration of how much compensation (if any) was payable to another hearing, which has not yet taken place.
- Although the respondent's grounds of appeal raise issues on the quantum of compensation by contending that the Employment Tribunal failed to consider regulations 12(1)(b) and (e), these matters were not dealt with the Employment Tribunal quite properly because they can and should be dealt with at the hearing on remedies. So I will not say anything more about them. The task of the Employment Tribunal in its 2009 decision was to ascertain whether regulation 12(1)(c) prevented payment of long -term compensation.
- The background to the this issue is that 2006 Employment Tribunal decision shows that the determining officer rejected the claimant's claim for Crombie compensation [16.1] and therefore it did not deal with the other regulation 12 issues. As I have explained, I allowed the appeal from that decision on the 2007 judgment and the Employment Tribunal as the industrial jury considered those issues for the first time in the 2009 decision.
- The Employment Tribunal held that the claimant's appeal against the respondent's decision to refuse long-term compensation should be allowed. The case for the respondent is that the Employment Tribunal incorrectly construed the word "suitable" in regulation 12(1)(c) and that it failed to take relevant matters into account, which should have led it to the conclusion that the claimant was not entitled to long-term compensation.
- At the Employment Tribunal hearing, Mr Coppel contended that the word "suitable" should bear its ordinary meaning as used in employment law which meant that there was a duty on the claimant to mitigate her loss. Ms Heal contended that the word "suitable" was a term of art and that it referred back to regulation 7 because regulation 12(3) provided that "Regulation 7(4) shall apply for the purpose of this Regulation in ascertaining whether a person has been offered suitable employment".
- Regulation 7(4) provides that no account should be taken of an offer where the determining authority are satisfied:-
"(a) that acceptance of an offer would have involved undue hardship to the person;
(b) that he was prevented from accepting an offer by reason of ill-health or other circumstances beyond his control; or
(c) that, either before the coming into the operation of these Regulations or before the employer gave him written notice that his employment was, or was to be, terminated an offer (i) has not been accepted by him, and (ii) has lapsed or otherwise terminated…".
- Ms Heal's submissions were that only employment as a justices' clerk or assistant to a justices' clerk in the same place or location would fall within that provision and that the claimant had unsuccessfully sought such an employment to the fullest extent possible. Her case is that a general duty to mitigate was not comprehended in the regulations and that if Parliament had intended that such a duty should be imposed, it would have said so clearly.
- The approach of the Employment Tribunal was to disagree in general with Mr. Coppel by explaining that:-
"64.. .the Crombie Regulations do not require a claimant to "mitigate" her loss in the ordinary sense, or to seek employment that it was "suitable" it its ordinary meaning. The regulations apply to a tiny and peculiar class of employees. It was not necessary, and certainly not compelling, to construe the very particular provisions in accordance with the legislation applicable to all employees. There was nothing on the force of the regulations to suggest that we ought to do so we could not agree with Mr Coppel that "suitable" bore different meanings in different parts of the regulations".
- The Employment Tribunal then concluded that the only employment suitable for the claimant under the new structure was as a BLM, which was the position equivalent to justices' clerk or an assistant to justices' clerk in the old structure at Wimbledon Magistrates' Court or elsewhere in south west London.
(ii) Grounds of Challenge
- Mr Coppel contends that the word "suitable" in regulation 12(1)(c) bears its ordinary meaning and that there was no basis for confining the class suitable employment in the way in which the Employment Tribunal did. He submitted that regulation 7(2) in deeming certain employment to be "suitable" does so only for the purpose of regulation 7(1)(f)(ii) and that in any event regulation 7(2) is not setting the "outer limits" to be attributed to suitable employment because all it is doing is deeming certain employment to be suitable. His case is that the claimant had a duty to mitigate.
- He then proceeds to say that as the Employment Tribunal had wrongly interpreted the word "suitable", it excluded from its evaluation of the issue a proper consideration of the extent to which the claimant sought suitable alternative employment. It is said by Mr. Coppel that if the Employment Tribunal had looked at the matter properly, it would have concluded that the other employment opportunities available to the claimant would have resulted in no long-term Crombie compensation or reducing the amount payable. He stresses again the large amount of compensation which would be payable to the claimant pursuant to the 2009 decision.
- Ms Heal disagrees and contends that the Employment Tribunal was correct.
(iii) Discussion
- It is clear that the interpretation provisions in the Crombie regulations which is regulation 2 does not define "suitable employment". Indeed the only definition of "suitable employment" is in regulation 7(2), which is the condition on which Ms Heal relies and it states in so far as is material that:-
"For the purposes of paragraph (1)(f)(ii) the following employment shall be deemed to be suitable - …
(b) in the case of a person assisting the holder of an office of Justices' clerk, the holding of the office of Justices' clerk, or employment assisting the holder of such an officer: provided that the said employment shall be at the same place or in the same locality as that where the person who has lost office was employed immediately before his loss".
- I am unable to derive any assistance from this provision when construing regulation 12 because the opening words of regulation 7(2) explain that its definition of "employment deemed to be suitable" is only relevant "for the purposes of paragraph (1)(f)(ii)". Clearly if the draftsman of the Crombie regulation had intended that the provision in regulation 7(2) should be relevant for the understanding and interpretation of the word "suitable" in other provisions such as regulation 12(1) (c) or indeed for any other purpose, it would have been expressly stated or at least it would not have limited its use for the purposes of only paragraph 1(f) (ii).
- I am unable to agree with Mr Coppel's contention that Regulation 12 imposed a duty to mitigate on the part of the claimant for at least four reasons. First, the concept of a duty to mitigate is so well-known to draftsmen that when they intend the rule to apply they state so expressly such as, according to Ms Heal, occurs in section 123(4) of the Employment Rights Act 1996. Second, to show, as Mr. Coppel submits is the correct position, that the wording in regulation 12(1) (c) ("the extent to which he has sought suitable employment") means a duty to mitigate entails rewriting this regulation to incorporate that duty because the word "suitable" does not envisage a duty to mitigate. Third, if the draftsman of the regulation wanted the determining authority and the Employment Tribunal to give the words "suitable employment" their every day meaning in the context of the claimant's employment as a justices' clerk's assistant (as Ms Heal contends to be the position), it would have used precisely the words which it did. Fourth, as I explained in paragraph 103, the Employment Tribunal is given a wide discretion as to whether long-term payments should be made by the use of the obligations that they should "have regard to such of the following factors as may be relevant". That is very different from a duty to mitigate which imposes on the decision-maker an obligation (as opposed to a discretion) to refuse to order payments when there has been a failure to mitigate.
- To my mind, the use of the word "suitable" in regulation 12(1)(c) is an ordinary English word which is intended that fact-finders would apply in a common sense way in the context of the particular applicant's employment as a justices' clerk's assistant and the Crombie regulations which deal with justices' clerks and their assistants. After all, words in a statutory provision have to be construed by reference to the context in which they appear and so for example, what is "suitable employment" by applying a provision in a statute or a statutory instrument relating to dock-workers may well be unsuitable in a provision concerning justices' clerks. The Employment Tribunal was required to construe the word "suitable" in this way to take account of relevant matters such as the claimant's job as a justices' clerk's assistant, the nature of the pension and other financial benefits of that job as well as the opportunities for promotion which it offered. As I will explain, this is what the Employment Tribunal did.
- This required the Employment Tribunal to reach a decision on what would be "suitable employment" for this claimant in the light of all the evidence before it, including significantly the fact that the jobs with which the Crombie Regulations are concerned are jobs as justices' clerks or as their assistants. Correctly and in compliance with its duty, the Employment Tribunal had recorded first that the BLM posts were ring-fenced in October 2002 for the claimant and Mr. Nicholson and second that the claimant had been deemed to have been constructively dismissed unfairly. In reaching that decision, the Employment Tribunal was acting as an industrial jury applying its knowledge and understanding of the facts as to what was "suitable employment".
- It follows that the Employment Tribunal was entitled to conclude that:-
"65. We concluded the employment to be sought by the claimant under the regulation in the terms applicable to the new structure was as a Bench Legal Manager i.e. the post equivalent to a justices' clerk or an assistant to a justices' clerk in the old structure, at Wimbledon Magistrates Court or elsewhere in South West London. That is the employment she sought".
- The Employment Tribunal was entitled to reach that conclusion and to proceed to conclude that the claimant had done all she could to seek this suitable work because:-
(a) "the claimant's employment by the respondent was secure, well paid, covered by employment protection legislation and a pension scheme, and had opportunities for promotion. Had she not been dismissed, it seems probable she would have remained in the employment until she reached retirement age"[66.1];
(b) what was "suitable employment" for the claimant would have to be considered in the context of the claimant's employment as a justices' clerk's assistant and the Crombie regulations, which deal with justices' clerks and their assistants;
(c) suitable work for the claimant would have included those features and would have entailed using her skills and experience as a solicitor. who had been a justices' clerk's assistant and that would mean being a Bench Legal Manager i.e. the post equivalent to a justices' clerk or an assistant to a justices' clerk in the old structure, at Wimbledon Magistrates Court or elsewhere in South West London;
(d) the only way in which the claimant could obtain similar work to that which she had before she was unfairly dismissed was if the respondent's predecessor "appraise(d) her of suitable available posts, but as we found, it did not reply to her enquiries regarding the posts" [66.3]. The history of these enquiries is set out in paragraphs 51 and 55 of the Reasons and they justify the conclusion reached because the claimant did not receive that assistance; and
(e) in those circumstances, the claimant obtained alternative work but that was not "suitable" because she "is now reliant on solicitors, does not include a pension, is unprotected by employment legislation, has no career ladder, and is less well paid" [66.2].
- In reaching the conclusion that the Employment Tribunal did not make an error of law, I have not overlooked the submissions of Mr. Coppel that:-
a) The Employment Tribunal confined the class of "suitable" employment incorrectly. I do not agree as it took account of the claimant's skills and experience, the job which she had before she had been unfairly dismissed and the benefits for her as well as the nature and ambit of the Regulations;
b) The Employment Tribunal was perverse as it reached a decision which was clearly open to it on the facts and the respondent's case falls a long way from reaching the Crofton v Yeboah (supra) threshold that an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached. In any event, it is noteworthy that the respondent has been unable to point to any other specific job which was "suitable" for the claimant; and that
c) The decision of the Employment Tribunal contained an error of law but the wording of regulation 12 gave a wide discretion, which it used to reach its decision.
XII. Conclusion
- I consider that for the reasons set out above including those reasons at paragraphs 37 to 46 above, there is no error of law in the conclusions of the Employment Tribunal that on 2 February 1995 and immediately before 1 July 2003, the claimant's employment was wholly or predominantly devoted to providing such assistance to the holder of the office of justices' clerk in the performance of the duties of that office so as to entitle her to claim under the Crombie regulations.
- Further, the Employment Tribunal was entitled to conclude that her claim to long-term compensation succeeds and she had sought unsuccessfully to obtain "suitable employment" so that her claim is not precluded by regulation 12(1) (c). Thus each of the grounds of appeal of the respondent fails essentially because the Employment Tribunal reached decisions, which were open to them on the facts. This judgment, unlike the 2007 judgment, does not raise an issue of principle. The respondent will have the consolation of knowing that their counsel has taken every possible point but the appeal must be and is dismissed.
