ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE SILBER
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE JACKSON
| Secretary of State for Justice
|- and -
|Debra Jane Slee
Ingrid Simler QC (instructed by Radcliffes Le Brasseur) for the Respondent
Hearing date : 27 October 2010
Crown Copyright ©
Lord Justice Pill :
"The claimant is a qualified solicitor. She commenced employment with the Magistrates' Courts Service in April 1982, initially in Bournemouth, and then at Newham Magistrates' Court. Her contract of employment was as a Justices' Clerk's Assistant under the Joint Negotiating Committee (JNC) Conditions of Service. In July 1993, she was appointed to the post of Court Clerk, later called legal Adviser, at Wimbledon Magistrates' Court, again as a Justices' Clerk's Assistant under the JNC Conditions of Service, and that was the contractual position throughout her employment. Mr Nicholson was then also a court clerk. The role of a court clerk is primarily to sit in court with the justices, and to advise them as to the law, procedures and practices applicable to the matters before them, but the role comprises a number of out-of-court duties as well. Mr Packer was in place as justices' clerk, and remained so until August 2002.
Until very recently, the role of justices' clerk was determined by the history of the office. In the years before the Justices of the Peace Act 1949, justices' clerks were lawyers in private practice who worked only part time at the court. The duties to ensure that his court properly carried out its judicial functions and to attend to the court's administration were vested in the justices' clerk. He was solely responsible for running his court, and he was paid from the fines and court fees he collected. The 1949 Act created a Magistrates' Courts Committee (MCC) for each of a number of designated areas. Wimbledon Magistrates' Court was within the area of the Merton MCC. . . The MCC had executive responsibility for funding and administration of their local magistrates' courts, including appointing and paying the justices' clerk, but the Act did not set out the duties and responsibilities of a justices' clerk save as Collecting Officer, and he continued to be the person answerable for the performance of all the judicial and administrative functions necessary to the proper operation of the court. That position continued, except for the period 1 April 1995 – 31 March 2001 when some of the duties were vested in the justices' chief executive, until about summer 2002 when a root and branch re-organisation of the magistrates' courts got underway."
"3. (1) These Regulations shall apply to any person who—
(a) held the office of justices' clerk on 2nd February 1995 and continues to hold such office immediately before the material date; or
(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) left that employment to hold office as a justices' clerk and continues to hold such office,
immediately before the material date.
(2) Paragraph (1) shall apply notwithstanding that the determining authority is not the magistrates' courts committee which had appointed the person to the office of justices' clerk held on 2nd February 1995 or, as the case may be, by which the person was employed on 2nd February 1995".
"Justices for each petty sessional division or borough used to appoint their own clerks who held office during the pleasure of the justices, being liable to dismissal at any time. However, the Justices of the Peace Act 1949 created Magistrates' Courts Committees with administrative responsibility for maintaining an adequate and efficient service of magistrates' courts, and vested in those committees (amongst other duties) that of appointing justices' clerks who thereafter held office during the pleasure of the Committee, subject to certain limitations in the exercise of their powers of dismissal.
The Act also provided (Schedule 4 paragraphs 9(1) and (2)) for the committee to appoint a clerk to the committee and such other officers if any as the Secretary of State might approve; and laid down that, where there was a separate committee for a borough or a county not divided into petty sessional divisions, the clerk to the borough or county justices should, by virtue of his office, be clerk to the committee. The Act made provision for the employment of any staff provided for the justices' clerk. It also, by section 17, imposed on the committee an obligation in relation to training of justices, the carrying out of which in practice fell largely on the clerk to the committee.
There have, of course, been other statutory provisions since the 1949 Act: but the importance of the latter is that, as from that date, the responsibility for appointment of justices' clerks fell on the newly created Magistrates' Courts Committees. The clerk to the committee was either the justices' clerk, whom they appointed but whom they did not employ; other staff whom they did employ; and those categories of officers approved by the Secretary of State, who had given general approval to the appointment, where desired by the committee, of an officer of the local authority as financial adviser or as architect to the committee."
". . . It would be convenient if one could treat that dividing-line, between delegated and non-delegated functions, as corresponding precisely to the relevant distinction under regulation 3. However, that is not how the regulation is drafted. Nor does it appear, from the Tribunal's finding, that there was in practice a clear dividing-line. Even the non-delegated functions seem to have been considerably more significant than those of 'typists, secretaries or ushers.' A conclusion that these duties, or some of them, also amounted to 'assisting the clerk', in the sense defined by the Tribunal, would not necessarily be unreasonable."
Carnwath J appears to have been receptive to a comparatively broad approach to the definition of duties amounting to 'assisting the clerk' under regulation 3(1)(b). He also acknowledged the difficulty of providing a clear dividing line between different functions.
Role of a Justices' Clerk and Justices' Chief Executive
"(1) Justices' clerks shall be appointed by the magistrates' courts committee and shall hold office during the pleasure of the committee, and the committee may appoint more than one justices' clerk for any area.
(2) A justices' clerk shall be paid a salary for his personal remuneration, and the salary shall be deemed to be remuneration for all business which he may by reason of his office as justices' clerk be called upon to perform, other than any duties as secretary to a licensing planning committee under the Licensing Planning (Temporary Provisions) Acts, 1945 and 1946.
(3) A justices' clerk may be paid a single salary in respect of two or more clerkships.
(4) Subject to subsection (6) of this section, a justices' clerk shall be provided with the accommodation and staff, and the furniture, books and other things, proper to enable him to carry out his duties.
(5) A justices' clerk shall, in addition to his salary, be paid the amount of any expenses of a description specified when his salary is determined, being expenses incurred by him with the general or special authority of the magistrates' courts committee.
(6) Where a justices' clerk devotes part of his time to work other than the duties appertaining to his clerkship or clerkships, he may be arrangement with the magistrates' courts committee make use for the purpose of those duties of any accommodation, staff or equipment which he has for other purposes, and the sums payable to him under the last foregoing subsection may include payments for accommodation staff or equipment so provided by him, whether or not he thereby incurs additional expense.
(7) Any staff provided for a justices' clerk shall be employed by the magistrates' courts committee but shall work under the direction of the clerk, and subject to this Act the committee may make any arrangements they think fit for staff to be engaged and dismissed, and the terms of their employment fixed, on behalf of the committee."
Some of those provisions plainly contemplate that JCs may be part time, a frequent occurrence at that time.
"It is hereby declared that the functions of a justices' clerk include the giving to the justices to whom he is clerk or any of them, at the request of the justices or justice, of advice about law, practice or procedure on questions arising in connection with the discharge out of session of their or his functions as justices, including questions arising when the clerk is not personally attending on the justices or justice, and that the clerk may, at any time when he thinks he should do so, bring to the attention of the justices or justice any point of law, practice or procedure that is or may be involved in any question so arising; but the enactment of this subsection 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."
Similar provisions appear in subsequent statutes (section 28(3) and (4) of the Justices of the Peace Act 1979, section 45(4) and (5) of the Justices of the Peace Act 1997 and section 28(4) to (7) of the Courts Act 2003). In the 2003 Act, the provision appears in a section headed "Functions" and contemplates judicial functions, section 28 providing:
"(1) Rules may make provision enabling things authorised to be done by, or before a single justice of the peace to be done instead by, to or before a justices' clerk.
(2) Rules may also make provision enabling things authorised to be done by, to or before a justices' clerk (whether by virtue of sub-section (1) or otherwise) to be done instead by, to or before an assistant clerk."
"The Justices' Clerk (of whom there are forty nine in England and Wales) occupies a unique position within HMCS in that, although a civil servant and subject to the management of the Area Director for administrative purposes, he/she has complete independence when undertaking judicial functions and giving legal advice to magistrates. He/she is appointed as a Justices' Clerk under the Courts Act 2003 by the Lord Chancellor and designated as such after consultation with the Lord Chief Justice."
"Role of justices' chief executive. E+W
(1) The justices' chief executive appointed by any magistrates' courts committee shall make arrangements for the efficient and effective administration of the magistrates' courts for the area to which the committee relates.
(2) For that purpose the administration of the magistrates' courts for the area to which a magistrates' courts committee relates includes—
(a) the exercise of the function of acting as clerk to the committee; and
(b) the exercise of all of the functions conferred or imposed on justices' chief executives by or under any other enactment so far as relating to any of those courts or that committee.
(3) The duty imposed on a justices' chief executive by subsection (1) above shall in particular require him—
(a) to allocate responsibility for what falls to be done in the exercise of his functions among justices' clerks and the staff of the committee; and
(b) to determine the administrative procedures to be followed by them.
(4) The justices' chief executive appointed by a magistrates' courts committee shall make arrangements for discussions relating to matters of law (including procedure and practice) among the justices' clerks appointed by the committee, in particular with a view to securing consistency in the advice given by them to justices about such matters.
(5) The justices' chief executive appointed by a magistrates' courts committee shall perform—
(a) the duties imposed on him by this section; and
(b) any other functions conferred or imposed on him by or under any other enactment,
in accordance with any directions given to him by the committee.
(6) Subject to section 48 below, the justices' chief executive appointed by a magistrates' courts committee may give directions to justices' clerks and the staff of the committee as to the carrying out of their responsibilities (including the performance of any functions conferred or imposed on them by or under any enactment)."
"[They] had executive responsibility for funding and administration of their local Magistrates' Courts, including appointing and paying the justices' clerk, but the Act did not set out the duties and responsibilities of a justices clerk save as Collecting Officer, and he continued to be the person responsible for the performance of all the judicial and administrative functions necessary to the proper operation of the court."
The Tribunal found that Mr Packer was appointed as JCE for Merton and "thus he held the post both of Justices' Clerk and Justices' Chief Executive".
". . . Accordingly Mr Packer's post of justices' chief executive in Merton came to an end as at that date [1 April 2001]. Thereafter his only post was justices' clerk. His executive functions of strategic planning, policy, hiring and firing, executive services, disappeared, as did his role as clerk to the MCC and his attendance at MCC meetings. It was not disputed that thereafter he was not subject to direction by the GLMCA except, he told us, 'theoretically' it might direct him to train ushers but could not direct how he did it. 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."
"We noted that, as a consequence of the reorganisation, a substantial number of fresh regulations set out the functions of the single, London-wide justices' chief executive, but there was no evidence that the new justices' chief executive delegated any of those functions either to Mr Packer or to the claimant, whereas we would expect a document to be created to reflect any such delegation. Furthermore, the body that had delegated justices' chief executive functions to Mr Packer was defunct, and the only evidence was that the new body 'did not interfere in courthouses'. The regulations were not brought to our attention until the respondent's final submissions, and neither the witnesses nor the tribunal were referred to any of their particular provisions."
"A new post of bench legal manager (BLM) was to be created to head up the legal team at each court, and to deputise for the regional justices' clerk. The administrative functions were to be undertaken by a bench office manager (BOM). On 31 October 2002, Ms Mansbridge wrote to the claimant that all BLM posts would be ring-fenced to the existing deputies, and accordingly the claimant and Mr Nicholson were both ring-fenced for the one post of BLM at Wimbledon Magistrates' Court, and both applied for it. Ms Preece was ring-fenced for the BOM post."
With effect from 2 July 2003, Mr Nicholson, and not the respondent, was appointed. The respondent lost her role.
"Whilst Mr Packer was justices' chief executive, that office was the mechanism, with its powers and obligations of delegation amongst court staff, but from 1 April 2001 only the London-wide justices' chief executive had powers to delegate the functions of that office. Insofar as the job description of 1 July 1996 was a contractual document, it was, as was Mr Packer's role of justices' chief executive, functus officio. Those functions set out in it that were attributable to the claimant's deputy justices' chief executive's role but remained for her to do after 31 March 2001, could only have been functions vested or re-vested 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. The justices' chief executive's functions belonged, in accordance with legislation, to the London-wide justices' chief executive."
"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."
"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."
"(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, subject to the provisions of paragraphs (2) and (3), have regard to such of the following factors as may be relevant, that is to say—
(a) the conditions upon which the person held the office which he has lost, including in particular its security of tenure, whether by law or practice;
(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 his 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 his case,
Provided that if at the time when the claimant first undertook the office which he has lost, or in which he has suffered a diminution of emoluments, proposals had been made leading to the event specified in Regulation 4 to which the loss or diminution was attributable, no account shall be taken of that fact.
(2) In ascertaining for the purposes of paragraph (1)(b) and (1)(c) the emoluments in respect of any work or employment that gives the employee or his widow, child or other dependant the right to benefit under a pension scheme under which the employee is not under an obligation to pay contributions, the amount of emoluments shall be increased by the amount of contributions which the employee would have to pay to secure equivalent benefits under a pension scheme in respect of which both the employer and the employee are under an obligation to pay equal contributions.
(3) Regulation 7(4) shall apply for the purposes of this Regulation in ascertaining whether a person has been offered suitable employment."
The issue is whether the Tribunal erred in finding that the respondent had "sought suitable employment' within the meaning of that term in Regulation 12.
"Conditions for payment of resettlement compensation
(1) Without prejudice to any other requirement of these Regulations, the conditions for the payment of resettlement compensation to any person are that –
. . .
(f) he has not, subject to paragraphs (3) and (4), after he has received from the magistrates' courts committee either written notice that his office was to be terminated or written notice of termination of his office, been offered in writing –
(i) any relevant employment which is reasonably comparable with the office he has lost, or
(ii) any employment specified in paragraph (2) which is suitable for him.
(2) For the purposes of paragraph (1)(f)(ii), the following employment shall be deemed to be suitable –
(a) in the case of a person holding the office of justices' clerk, the holding of another such office; and
(b) in the case of a person assisting the holder of the office of justices' clerk, the holding of the office of justices' clerk, or employment assisting the holder of such an office:
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.
(3) In ascertaining for the purposes of this Regulation whether a person has been offered employment which is reasonably comparable with that which he has lost, no account shall be taken of the fact that the duties of the employment offered are in relation to the administration of a different service from that in connection with which his office was held or are duties which involve a transfer of his employment from one place to another within England and Wales.
(4) For the purposes of this Regulation, 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 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,
no account shall be taken of that offer.
"For the claimant [the respondent] Ms Heal submitted that 'suitable' is a term of art particular to the Crombie Regulations, so reg 12 refers back to reg 7. Thus only employment as a justices' clerk or assistant to a justices' clerk, in the same place or locality, would fall within the provision, and the claimant had sought such employment to the full extent possible. A duty generally to mitigate was not comprehended in the regulations. That duty arises in claims for damages, or, for example, under s123 of the Employment rights Act 1996. If Parliament had intended there to be such a duty under the regulations, it would have said so."
"We agreed with Ms Heal that the Crombie Regulations did not require a claimant to "mitigate" her loss in the ordinary sense, or to seek employment that was "suitable" in 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 legislation applicable to all employees. There was nothing on the face 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."
"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 regulations 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)."
"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."
"In accordance with the regulation, we took into account the following:
66.1 The claimant's employment by the [appellant] 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.
66.2 In accordance with our findings at paragraph 53 above, the claimant's work is now reliant on solicitors, does not include a pension, is unprotected by employment legislation, has no career ladder, and is less well paid.
66.3 In accordance with our findings at paragraphs 51 and 55 above, the tribunal concluded that the claimant had done all she could to seek suitable employment. The claimant was dependent upon the [appellant's] predecessor in title to apprise her of suitable available posts but, as we found, it did not reply to her enquiries regarding the posts."
These are findings of a general nature which apply on an application of the correct test, which requires an overall approach.
"121. 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 [appellant] 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 [appellant'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].
122. 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 [appellant's] case falls a long way from reaching the Crofton v Yeboah [ IRLR 634] 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 [appellant] 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."
Lady Justice Arden :
Lord Justice Jackson :