England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(JUDGE PETER CLARKE)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 March 2016

1. LORD JUSTICE LONGMORE:This is an application for permission to appeal by Mr McGrath, who has been a lay member of the Employment Tribunal in the Manchester region between 1981 and 2013.
2. On 2 May 2013 he filed a part-time worker discrimination claim pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 complaining that as a part-time judicial officer he was excluded from the Ministry of Justice judicial pension scheme. For that purpose, he sought to compare himself for the purposes of the regulations to a full-time salaried employment judge.
3. He is one of a number of claimants who have all sought parity of treatment of judicial office holders in respect of access to the relevant judicial pension scheme. He argued that the core function of both lay members and employment judges is to decide the cases that come before them.
4. Since there is a large number of such claims, the former president, Judge David Latham, and his successor, Judge Brian Doyle, assigned Judge Macmillan to conduct a number of preliminary hearings under rule 53(1)(b) of the Employment Tribunal Rules of Procedure as to whether or not such a claim was maintainable in law.
5. The comparator suggested by Mr McGrath of a full-time salaried employment judge was considered by Judge Macmillan at a preliminary hearing in London sitting alone on 13 March 2014. Mr McGrath's work was held by Judge Macmillan not to be the same as or broadly similar to that done by the comparator, namely a full-time salaried employment judge, and his claim was therefore dismissed.
6. A preliminary point at that preliminary hearing was taken by Mr McGrath as to whether Judge Macmillan had jurisdiction to hear the case sitting alone since it was a discrimination case and therefore did not fall within the exceptions contained in section 4(3) of the Employment Tribunals Act 1996. Judge Macmillan considered that and in paragraph 2 of his judgment he said that:

"Preliminary hearings under rule 53 are always heard by an employment judge sitting alone."

7. I should explain that that rule, 53, does indeed refer to preliminary hearings and says, "A preliminary hearing is a hearing at which the Tribunal may do one or more of the following... (b) determine any preliminary issue..." which is then defined as any substantive issue which may determine liability, for example an issue as to jurisdiction as to whether an employee was dismissed.
8. Then rule 55 says:

"Preliminary hearings shall be conducted by an Employment Judge alone, except that where notice has been given that any preliminary issues are to be, or may be, decided at the hearing a party may request in writing that the hearing be conducted by a full tribunal in which case an Employment Judge shall decide whether that would be desirable."

9. So that is the authority by which Judge Macmillan sat alone at this preliminary hearing.
10. He then added in paragraph 2 of his judgment:

"But there is an added complication. The claims are brought under the 2000 regulations. The Employment Tribunal has exclusive jurisdiction to hear complaints under those regulations. Mr McGrath, the Claimant in these proceedings, is a lay member of the Employment Tribunal. If I was to sit with lay members, they would have to disqualify themselves for the simple reason that being in the same position as Mr McGrath, who seeks access to judicial pension scheme and payment for attendance at training, they would automatically be beneficiaries if he succeeded in his claim. This claim must therefore be heard by an employment judge sitting alone for both of those reasons."

11. So if Mr McGrath had asked, as he was prima facie entitled to ask under rule 55, for a full hearing, Judge Macmillan would have decided that could not really happen for the reasons that he there gave. Judge Macmillan then went on to decide that there was, as I say, no true comparison with a full-time salaried judge.
12. Mr McGrath then appealed to the Employment Appeal Tribunal on six grounds, the first of which was no different from ground six and the second of which was that Judge Macmillan should not have sat alone.
13. The third ground was that he should have considered himself bound by the Supreme Court in the O'Brien case to hold that a judge lay member did comparable work with the judicial member.
14. Fourthly, Matthews v Kent in the House of Lords in 2006 required salaried full-time member and lay members to be treated equally.
15. Fifthly, he perversely failed to regard evidence which had been before him from a Judge Toomer that deciding cases was of crucial importance; that was evidence that should have compelled Judge Macmillan to decide the case in Mr McGrath's favour. Then there was a sixth ground that the judge had proceeded on his own experience to the exclusion of that of Judge Toomer in a way that was unfair and biased towards Mr McGrath.
16. Those grounds of appeal came before Langstaff J in the Employment Appeal Tribunal under the sift procedure in rule 3(3) of the regulations. He rejected all those grounds as being arguable except for ground six, which he did order to proceed.
17. As far as ground two is concerned, which is the main matter that Mr McGrath has argued this morning, Langstaff J said it was wrong because jurisdiction is provided for by statute. The judge could have chosen to sit with members, but was entitled and would be expected not to and his reasons for so doing were impeccable.
18. There was then a hearing on 25 September 2014 at which Mr McGrath sought to say that those decisions on the sift were wrong. That application was dismissed by His Honour Judge Peter Clarke.
19. Accordingly, the Employment Appeal Tribunal hearing proceeded on 14 January 2015 on the one permitted ground, ground six. That was itself dismissed on the basis that there was no unfairness in the hearing, that Judge Macmillan was entitled to rely on his own experience, as well as that of Judge Toomer, in coming to his conclusion that despite the fact that there were four similarities in the role of the lay member and the salaried judge, there nevertheless were significant differences.
20. Those were summarised by His Honour Judge Peter Clarke in giving the judgment of the EAT as being that there were a large number and a large range of cases in which the salaried judge sits alone, that the judge who takes the lead in the hearing room and in subsequent discussions and delivers the decision with a full written response is doing work which is different from that of the lay member, and also that all case management decisions are in any event dealt with by the judge.
21. Mr McGrath now seeks permission to appeal the decision of the Employment Appeal Tribunal. He has been refused on the papers by Lewison LJ, but as he is entitled to, he now makes an application orally. He lives in Kelso in Scotland and fortunately has been able to take advantage of the video link in the Jedburgh Sheriff Court from which he has addressed me this morning.
22. I can perhaps summarise his grounds of appeal as being that Judge Macmillan failed to apply the Matthews test in the case in the House of Lords in 2006; that he should have recused himself; that he erred by dismissing the case at a preliminary hearing when sitting alone, which I shall come back to; and failed to accept the reasoning of Lord Walker in O'Brien. These are all matters in respect of which, apart from what I have called the ground six point, Mr McGrath was originally refused permission to appeal. They are, therefore, technically not open to him at this stage but, even if they were, there is nothing in them.
23. I said I would come back to the question as to whether Judge Macmillan should have sat alone. That was not a matter that was permitted to proceed to the Employment Appeal Tribunal. Again, it cannot be a matter which Mr McGrath is entitled to pursue in this court in the Court of Appeal.
24. Mr McGrath submits that although he did not have permission to take that matter to the Employment Appeal Tribunal, nevertheless since it goes to the jurisdiction of Judge Macmillan he should nevertheless be permitted to bring that complaint to the Court of Appeal. He cites the well-known case of Jafri v Lincoln College, namely that if a matter does go to jurisdiction then the court must in any event quash the decision and remit it to a properly constituted tribunal.
25. I am afraid that is just not correct. Unless Mr McGrath has permission to air the matter in front of the Employment Appeal Tribunal and there is a decision on the point in the Employment Appeal Tribunal, there is no jurisdiction for him to come to this court, whether or not the matter he complains about is a matter of jurisdiction.
26. But as Langstaff J said when refusing permission for this ground to proceed to the Employment Appeal Tribunal, the reasons given by Judge Macmillan are indeed impeccable. The rules provide that preliminary hearings be conducted by a judge alone. This was a preliminary hearing since there was no finality at the end of it even if Mr McGrath were to win.
27. Orders had been made for these preliminary hearings which have taken place in all the cases which are brought by lay members of tribunals. One, of course, sees their argument that they should be entitled to have a pension along the lines of Mr O'Brien's in the Supreme Court and that that is of itself an arguable point or at least would be an arguable point if there was a true comparison between the work of a lay member and the judicial member, but as has been held, not just by Judge Macmillan but in other cases as well, that, of course, is not the case. That is also not a matter on which Mr McGrath has permission to appeal.
28. He also says that there are now, as a result of the recent regulations, enormous numbers of cases where the legal member of the Employment Tribunal does sit alone and that is effectively achieving by regulation a complete reversal of the original intention of the employment tribunals, which was always that there should be one legal member and two lay members. He says that this is happening by the back door without any authority from Parliament.
29. He has in fact, in a recent addition to his speaking note, referred me to the decision of Lady Smith in Scotland in the case of Thomas McCafferty v Royal Mail Group in which points out that in a case where there were three members of the tribunal and the two lay members had come to a different conclusion from the judicial member so that their view prevailed as the majority and constituted the decision, and in which she says that had the claim been one to which the new Employment Tribunals Act (Tribunal Composition) Order 2012 applied, it would probably have been decided by a judge sitting alone in which case the decision would have been different.
30. She adds:

"Some may consider that to be a sobering thought. It certainly seems supportive of the arguments advanced in response to and against the proposal last year that employment judges be able to sit alone in unfair dismissal cases."

31. Mr McGrath says that that is a deeply worrying development unauthorised by Parliament and that the Court of Appeal should hear his proposed appeal so that it could comment on the situation as Lady Smith has commented in Scotland.
32. I regret to say that I cannot regard that as a good ground for permitting an appeal. Appeals are not brought so that the court can make comment on unfortunate developments in the way that Employment Tribunals or indeed any other tribunals are constituted. The fact is that whatever has been achieved by the order to which Lady Smith refers has been authorised by Parliament. Whether that is a good development or a bad development is not a matter on which this court could possibly comment.
33. Although it has been delightful to be able to listen to Mr McGrath this morning, I fear that I cannot give him permission to appeal because the inevitable result would be the dismissal of any appeal that he seeks to bring. There is thus no possibility of success and I must therefore dismiss this application.