England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2A 2LL
		14th April 2000

THE HON. MR JUSTICE CARNWATH

1. This is an appeal against a decision of the Employment Tribunal given on 23rd November 1998. As the Tribunal said, it concerns a somewhat obscure corner of their jurisdiction, relating to what are known as the "Crombie" Regulations. (No-one before me was able to explain the name). These are the Justices of the Peace Act 1949 (Compensation) Regulations 1978, as amended. They regulate the compensation payable on redundancy to justices' clerks or their assistants. The case turns on a short statutory question, all other aspects of the claims having been agreed. The issue is whether or not the applicants were -

"employed in assisting the holder of the office of justices' clerk in the performance of the duties of that office". (See Regulation 3(1)).

The appeal to this Court is on issues of law only.

The facts

2. The applicants were both employed for many years by the respondents at Witney Magistrates' Court. They were both dismissed on 31st March 1997, having volunteered for redundancy following a re-organisation. They received contractual redundancy benefits, but there was a dispute as to whether they qualified for the additional compensation provided for under the Crombie Regulations.
3. The Tribunal found the following facts:

"(1) Both applicants were members of the administrative staff of the court. Neither has any legal qualifications.

(2) The administrative staff were divided into two sections: Family and Maintenance (including the cash office) and Pre/Post Court. Mrs Gannon belonged to the former section and Mrs Pizzey to the latter.

Mrs Gannon

(3) Mrs Gannon held the position of family and maintenance assistant. She worked 28.5 hours per week. After 1993 her job was mostly concerned with care proceedings, maintenance and family matters. She was responsible for listing cases, arranging for magistrates to attend and preparing the day's diary list for the justices' clerk. After sittings were completed, it was her duty to "result" the court. This consisted of checking and recording the outcomes of cases and entering them on the computer. She also had responsibility for dealing with counter and telephone enquiries, issuing maintenance cheques, maintenance enforcement and, in a small way, collection of fines.

(4) Other duties were delegated to Mrs Gannon by the justices' clerk. These (referred to below as 'delegated duties') included adjourning hearing dates for family and maintenance cases, certifying extracts from court registers and the computer, adjourning complaints with the parties' consent, deciding on the venue for the hearing of maintenance arrears complaints, dealing with requests made at the counter for time to pay fines, accepting service of statutory declarations and appointing guardians ad litem and making other arrangements for emergency care proceedings. Delegation of these tasks seems to have occurred in a piecemeal way, without ever being formalised in any document.

(5) Mrs Gannon received informal guidance and advice from time to time as to how to exercise her delegated powers. On occasions she raised problems with her supervisor, Jenny Mold. Points of difficulty were referred to the justices' clerk or the court.

(6) On an average, delegated duties occupied Mrs Gannon for not less that 25% of her working day.

(7) By doing her job Mrs Gannon provided assistance to the justices' clerk in the broad sense that she contributed to the efficient running of the court. By carrying out delegated duties she assisted the justices' clerk in the performance of the duties of his office in the narrow sense that she personally performed some of his functions.

Mrs Pizzey

(8) Mrs Pizzey's post carried the title of pre/post court supervisor. She worked 33 hours per week. She was responsible for the listing of non-family cases, allocation of business to different courts (at least when more than one court was sitting) and pre-hearing liaison with the parties (particularly the Crown Prosecution Service). Following the sittings, it was her duty to "result" the court and communicate as necessary with those affected by its decisions. As her job title suggests, she had the responsibility of supervising the other staff who worked on pre- and post-court duties (of whom there were two).

(9) In addition to these functions, Mrs Pizzey was authorised and required to perform a variety of other tasks including handling Legal Aid applications, adjourning complaints with the parties' consent, further adjourning criminal proceedings with the prosecutor's consent, setting trial dates, accepting service of statutory declarations, giving consent for another court to deal with breaches of probation orders and certifying extracts from the court register and computer. Authority to carry out these categories of work (also referred to below as "delegated duties") derived from the justices' clerk. A memo circulated to staff by Mr Clark, then the justices' clerk, dated August 1996 together with an accompanying table (A4 pp 13-16) lists these (and other) delegated duties (described in the document as 'judicial'). Adjourning complaints by consent is not shown as one of Mrs Pizzey's delegated duties in the table but that appears to have been an accidental slip and nothing more.

(10) Mrs Pizzey received formal training on the handling of Legal Aid applications and informal guidance in relation to the other delegated duties. It was always well understood that if any point of difficulty arose, she must refer it to the justices' clerk or another member of the legal staff.

(11) Mrs Pizzey devoted not less than 40% of her working time to delegated duties.

(12) In the case of Mrs Pizzey we make the same finding as that set out in subparagraph (7) above in relation to Mrs Gannon."

The Regulations

4. Regulation 3(1) of the 1978 Regulations, as amended by the Justices of the Peace Act 1949 (Compensation) (Variation Regulations 1995), reads:

"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."

5. The previous version of paragraph (b) read:

"....was, immediately before the material date, either for the whole or for a part only of his time, the holder of the office of justices' clerk or employed in assisting the holder of such an office in the performance of the duties of that office".

6. The statutory sources of the Regulations and the 1995 amendment need a short explanation. Section 42 of the Justices of the Peace Act 1949 required the Secretary of State to make Regulations providing for payment of compensation to persons suffering any loss of office or employment in consequence of the re-organisation effected by that Act. Section 32 of the Administration of Justice Act 1964 provided for the Regulations made under the 1949 Act to be extended so as to apply to justices' clerks or their assistants appointed subsequently. Regulations pursuant to this provision were made in 1965. They were replaced by the 1978 Regulations, also made under section 42 of the 1949 Act, as extended by section 32 of the 1964 Act. The Justices of the Peace Act 1979 repealed both those sections. However, by Schedule 1 paragraph 13, it was provided that any extant Regulations made under those provisions should continue to have effect and could be revoked or varied accordingly. Regulation 3 was amended in 1995 (as above). The explanatory note merely stated that the variation was to provide that the 1970 Regulations would apply "only to justices' clerks and their assistants in post on 2nd February 1995." There was no explanation of the omission of the words "for the whole or part only of his time".
7. I should also refer to Regulation 7, which was relied on by both parties in argument. Regulation 7 provides for the circumstances in which a person is disqualified from resettlement compensation where he is offered alternative employment. By Regulation 7(1)(f) it is made a condition of resettlement compensation that

"he has not...been offered in writing -

(i) any relevant employment which is reasonably comparable to the office he has lost, or

(ii) any employment specified in paragraph (2) which is suitable for him."

Paragraph (2) provides that for all these purposes:-

"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".

Authorities

8. I was shown two unreported authorities relating to the previous version of the Regulations. The first is Bowden -v- Northamptonshire Magistrates' Courts Committee (8th February 1993, Hutchison J). The second is a decision of the Employment Appeal Tribunal (Chairman, Butterfield J) in Salford Magistrates' Court Committee -v- Slack (10th May 1996). It was common ground before me that the EAT did not in fact have jurisdiction to deal with the issue under the Crombie Regulations. However, I see no reason why that should prevent me treating the judgment as persuasive authority, to the extent that it is relevant.
9. Bowden concerned the former Chief Executive of the Magistrates' Court Committee. Hutchison J held that he did not fall within Regulation 3. A principal argument, accepted by the judge, was that the person assisting must be a subordinate, which the Chief Executive was not. That argument does not apply here. It was also argued (by Mr Elias for the Committee) that the assistants must be something more than people providing administrative support:

"What is intended to be covered by Regulation 3 are justices' clerks and their assistants in the sense of those people who are employed to assist them; that is to say, people who would be capable of performing the office." (p13).

Regulation 7 was relied on in support of this argument. As Mr Elias argued, this could not make sense if the expression in (b) included such persons as typists, secretaries and ushers who in the broad sense assisted the clerk, since it would make the category of suitable alternative employment far too wide.

10. The judge also referred to section 20 of the 1949 Act itself which, in subsection (3), refers to a category of persons who have "served as assistant to a justices' clerk"; and to section 23(1), which provided for the transfer to the employment of the Magistrates' Court' Committee on the commencement of the Act of -

"any person then employed (by the justices' clerk) to assist him in the performance of the duties appertaining to that clerkship...".

Hutchison J said:

"These provisions do in my judgment lend further force to Mr Elias's argument that the legislation recognised a specific category of persons who are assistants to justices' clerks; and support the argument that Regulation 3 is to be construed as referring to them."

He concluded by observing that the meaning of the Regulation could be said "to be largely a matter of impression", and said:

"Whether construed in isolation or in the limited context in which I have, for the purposes of this judgment, set it, I have no doubt that the meaning for which Mr Elias contends is the correct one and the Regulation cannot embrace a person holding the post which Mr Bowden held on the relevant date." (p17).

11. In the other case, Mr Slack was the Chief Cashier at the justices' clerk's office for the Eccles Magistrates' Court. Although the decision is dated May 1996, his employment was terminated by February 1994, before the change in the Regulations. The Committee argued that insofar as he was assisting the justices' clerk, it was in the performance of his duties as a collecting officer, rather than the duties of the office of justices' clerk, and further that he failed to satisfy the condition in Regulation 7, because he had been offered suitable alternative employment.
12. The Tribunal observed that, although a substantial part of his duties fell entirely outside the scope of any duty concerned with a collecting officer, that was not an obstacle, because it was sufficient if the person was "either for the whole or a part only of his time" assisting the justices' clerk.
13. The Industrial Tribunal had held that Mr Slack came within Regulation 3. The EAT considered that this was a question of fact for them and their finding could not be described as perverse. However, the matter was, in their view, put beyond doubt by reference to a schedule signed by the Clerk to the Justices, pursuant to his powers under Rule 4 of the Justices' Clerks' Rules 1970, by which he authorised certain things formerly done by a justices' clerk to be done by certain named persons. The persons so authorised included the Chief Cashier. The schedule gave authority to him to carry out certain functions, such as allowing further time for the payment of a sum enforceable by the Court, or to vary the terms of an instalment order. In the EAT's view this document demonstrated "beyond any possible doubt" that the respondent was assisting the justices' clerk at the material time.
14. The EAT noted that the Tribunal had regarded the Regulations as extending to staff "who carry out even the mundane duties of administration in the collection of monies." The EAT commented:

"Plainly the Regulations covered the senior member of staff who were exercising to a greater or lesser extent the powers conferred on the justices' clerk by virtue of his office, as in this case specified in the schedule to which we have referred. Whether they go further may be a matter for future determination, it is not required in our decision today...".

15. On the issue of whether Mr Slack met the condition in Regulation 7, Mr Slack had been offered a position described as "clerical assistant", which carried a level of responsibilities "much lower than the respondent's existing post." The Industrial Tribunal had made no finding as to whether that post fell within the scope of "assisting the holder of the office of justices' clerk"; but for the purposes of the appeal, the EAT were invited to assume that the job did fall within that expression. Mr Slack argued, however, that even if that assumption was made, it was still necessary under para 7(1)(f), that the post be "suitable for him", and that on the findings of the Tribunal it clearly was not suitable because it involved a demotion and a substantial salary cut. The EAT accepted this argument. In their view the words "for him" were -

"there for a purpose and in our judgment that purpose is to introduce a subjective element to the question of whether the suitable employment is in the particular circumstances suitable for the person to whom it is offered."

The decision in the present case

16. The Tribunal began by expressing their conclusions on the wording of Regulation 3 itself, without regard to the other provisions which had been cited to them by way of context, or to the two authorities I have mentioned. They said this:

"(a) the words 'employed in assisting the justices' clerk' suggest that assisting the justices' clerk should be an appreciable as opposed to insignificant or negligible) feature of the employment, but we do to consider that the statutory language justifies Mr Oldhams's argument that qualifying employees must be wholly or predominantly devoted to providing such assistance. If that had been the legislature's intention, there would have been no obstacle to enacting a provision to that effect.

(b) The removal by the 1995 Variation Regulations of the words 'either for the whole of for a part only of his time' is, we think, unimportant. Whether that clause was intended expressly to apply the Regulations to those whose working time was divided between assisting the justices' clerk in the performance of the duties of his office within the meaning of Regulation 3(1) and other duties, or merely to make it plain that the Regulations applied to part-time as well as full-time employees, or both, it seems highly unlikely that the 1995 amendment was designed to exclude a significant class of persons from the scope of the 1978 Regulations. It seems much more probable that the words were deleted simply because they were considered otiose.

(c) The requirement of assisting the holder of the office of justices' clerk "in the performance of the duties of that office", would seem to distinguish qualifying employees from other members of the respondents' staff (for example ushers or secretaries) who, by performing their own duties, merely facilitate the clerk's performance of his duties. On a natural reading of the statutory language, the Regulation appears to us to bring within its scope those whose functions entail to an appreciable extent the performance of duties of the justices' clerk, that is to say those with whom the clerk shares, or to whom he delegates, duties of his office. The words of the Regulation do not seem to us to require that all, or even a significant proportion, of the numerous duties of the justices' clerk should be shared or delegated.

(d) The delegated duties which both applicants performed were predominantly duties of the office of justices' clerk under the schedule to the 1970 Rules, and the duties of the office of justices' clerk constituted an appreciable part of the overall responsibilities of both applicants.

(e) The fact that the applicants performed the delegated duties under supervision and subject to guidance does not militate against the conclusion that the they were 'employed in assisting the justices' clerk in the performance of the duties of that office'."

17. Having analysed the other provisions referred to, they concluded that there was nothing which undermined their initial conclusion. So far as concerned the two authorities, they dismissed the Slack case as "a nullity and as such not an authority of any kind"; and they distinguished Bowden as a decision "based on facts quite different from those with which we are concerned".

The present appeal

18. Mr Lynch, for the Committee, has put his arguments in a number of different ways. In essence however he makes a short point, which is that the relevant words are apt to describe an employee -

"whose primary and substantive purpose is to assist in the performance of the justices' clerk's duties. They do not apply to general administrative workers such as the respondents, who do not report to the justices' clerk and whose general duties are not devoted to assisting in the performance of the duties of that office, albeit that on occasions they do routine administrative acts for the justices' clerk."

19. As the argument developed before me, it became apparent that there was a substantial degree of common ground between the parties. Mr Segal, for the respondents, did not contend that the words "assisting the justices' clerk " should be read in their widest sense, which could apply to purely administrative or secretarial activities. He adopted paragraph (c) of the Tribunal's decision as a correct statement of the position. That distinguishes those whose functions "merely facilitate the clerk's performance of his duties" from those "with whom the clerk shares, or to whom he delegates, duties of his office." Only the latter qualify.
20. I did not understand Mr Lynch to quarrel with this formulation. In particular he did not seek to persuade me that assisting the justices' clerk was confined to those who assisted him in a legal capacity. He helpfully drew my attention to the 1979 Edition of Halsbury's Laws of England Vol. 29 "Magistrates", as giving an indication of the functions of justices' clerks at about the time of the 1978 Regulations. As one would expect, the duties of justices' clerks are described as including the functions of giving legal advice to the justices; but they also include other functions such as, the duty to keep the register of adjudications, accounting duties, and duties as the collecting officer of the Court (paras 501-505). I was shown other provisions which ensure that those acting in the role of justices' clerk have appropriate legal qualifications where necessary (see for example the Justices' Clerks (Qualifications of Assistants) Rules 1979). However, any such limitation is absent from Regulation 3.
21. The real issue between the parties seems to me to turn on paragraph (a) of the Tribunal's conclusions. Is it sufficient that assisting the justices' clerk should be "an appreciable (as opposed to insignificant or negligible)" feature of the employment, as the Tribunal concluded? Or is Mr Lynch right in submitting that the employment must be wholly or predominantly devoted to providing such assistance?
22. This point was not considered directly in Bowden. In Slack, the EAT thought that the question was answered by the words "either for the whole or for a part only of his time". I doubt with respect whether that is the correct interpretation of those words in the original Regulations. I am inclined to agree with Mr Lynch that they were intended to indicate simply that the employment could be "full-time or part-time employment" (as in the definition of "reckonable service" in para 2). The change of wording is probably explained by the draftsman's need to apply that concept in paragraph 3(a), to the holder of an office as well as to an employee. In any event those words do not appear in the current Regulations. Therefore, even if correct, Slack is of no assistance on this point.
23. In my view Mr Lynch is correct on this issue. The words of paragraph 3(1)(b) itself are ambiguous. I accept that a person, only part of whose duties consist of assisting the justices' clerk, could still properly be said to be "employed in assisting" him. However, the context is of an employment which is comparable to that of the office of justices' clerk. That is much more readily understandable in relation to someone whose main job is to assist the clerk, rather than someone who merely spends part of his time assisting the clerk.
24. Like Hutchison J, I think one does derive some assistance from Regulation 7. The purpose of para 7(2) is to define forms of employment which are prima facie suitable. I accept that it may not be a complete definition, and therefore, like the EAT in Slack, I think that it may also be necessary to give some weight to the words "suitable for him". Otherwise, even within the recognised categories of functions of justices' clerks, one might find an offer of wholly unsuitable employment - for example, a legal advice function offered to a collecting officer. However, I would expect the definition to be intended to define the predominant characteristic of the employment, and thus achieve its purpose of narrowing down significantly the categories of employment which need to be considered.
25. I note also, although it was not referred to in argument, the definition of "paying authority" in Regulation 2. The definition deals with the two cases, first, where the office was that of Clerk to the Justices, and, secondly,

(b) "....where the employment in respect of which a claim arises consisted of assisting the holder of such office as aforesaid....".

The assumption accordingly appears to be that the employment is one which "consists of" assisting the justices' clerk, not simply one which includes an appreciable element of such assistance. This interpretation also seems to me consistent with the provisions of the 1949 Act referred to by Hutchison J, and his conclusion that there was a recognised category of persons who were assistants to justices' clerks.

Conclusion

26. It follows that the appeal to this Court must be allowed. In what was otherwise a meticulous decision, the Tribunal misdirected itself in law in holding that "assisting the justices' clerk" need be no more than an "appreciable" part of the duties of the assistant. It does not follow, however, that the matter is concluded against the applicant on the facts. Although I would have liked to be able to dispose of the case finally, I cannot properly do so (other than by agreement), unless satisfied that, on the correct view of law, only one conclusion is possible. Otherwise, the right course is to remit the matter to the tribunal of fact for re-determination.
27. On the findings of the Tribunal, the issue does not seem to me so clear-cut. The Tribunal, reasonably, regarded the duties specifically delegated by the Clerk, as qualifying under their test. Since those duties clearly amounted in each case to an "appreciable" part of the applicants' functions (at least 25% and 40% respectively), it was unnecessary, on their view of the law, to go further. 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 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.
28. Subject, therefore, to any further submissions by the parties on the form of remedy, I propose to allow the appeal, and remit the matter to the Tribunal for re-determination.