THE HONOURABLE LADY WISE
1.
The Claimant (and Respondent in the appeal) is a Barrister who also held
office as a Recorder until he reached the compulsory retirement age of 70,
after which the Respondent (and Appellant) did not extend his tenure of
office. In a Judgment and Reasons sent to parties on 14 October 2016 the
Employment Tribunal at London Central (Employment Judge V Gay presiding) found
that the failure to extend the Claimant’s appointment as a Recorder was less
favourable treatment of him on the ground that he was a part-time worker
without objective justification. In a subsequent Remedy Judgment sent to
parties on 6 December 2016 the Respondent was ordered to pay the Claimant
£36,796.67 in compensation. The Respondent, the Ministry of Justice, appeals
both Decisions. The Claimant was represented both before the Tribunal and on
appeal by Mr J Crosfill of counsel. The Respondent was represented on both
occasions by Ms C Darwin of counsel. I will in accordance with practice refer
to the parties as Claimant and Respondent as they were in the Tribunal below.
2.
The appeals against liability and remedy were heard together and there
is some overlap in that two of the grounds against remedy raise issues that are
related to the liability appeal. However, for convenience I will separate the
two appeals so that it is clear what arguments were presented in each for my
determination.
(I) Liability
The Applicable Legislative Provisions
3.
It may be useful first to set out the applicable provisions on the
relevant judicial appointments and retirements and also on the prevention of
less favourable treatment for part-time workers at the outset. These are:
(i) Judicial Appointment and Retirement
The appointment of Recorders is dealt with in the Courts Act 1971.
Section 21 provides that Recorders can be appointed to act as part-time Judges
of the Crown Court and to carry out such other judicial functions as may be
conferred on them. There is provision for the appointment of Deputy Circuit Judges
in section 24 of that Act (as amended), which is also a part-time post.
Recorders and Circuit Judges are both relevant offices for the purposes
of section 26 of the Judicial Pensions and Retirement Act 1993 (“JUPRA”)
which provides:
“(1) Subject to the following provisions of this section, a
person holding any of the offices for the time being specified in Schedule 5 to
this Act (a “relevant office”) shall vacate that office on the day on which he
attains the age of 70 or such lower age as may for the time being be specified
for the purpose in the enactments and instruments relating to that office,
whenever passed or made.
…
(5) If, in a case where this subsection applies, the
[appropriate person] considers it desirable in the public interest that the
holder of a relevant office should continue in that office after his compulsory
retirement date, he may authorise the person to continue in office, either
generally or for such purpose as he may notify to the person, for a period not
exceeding one year and not extending beyond the day on which the person attains
the age of 75.”
Section 26(6) makes provision for further periods for continuation in
office after the initial one year period but not extending beyond the day on
which the person attains the age of 75.
(ii) Part-time Workers
The provisions of the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 (SI 2000/1551) relevant to this appeal are
contained in Regulation 5 and are in the following terms:
“(1) A part-time worker has the right not to be treated by
his employer less favourably than the employer treats a comparable full-time
worker -
(a) as regards the terms of his
contract; or
(b) as being subjected to any other
detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if -
(a) the treatment is on the ground
that the worker is a part-time worker, and
(b) the treatment is not justified
on objective grounds.
(3) In determining whether a part-time worker has been
treated less favourably than a comparable full-time worker the pro rata
principle shall be applied unless it is inappropriate.”
The Tribunal’s Judgment
4.
The Tribunal’s Judgment sets out in helpful detail the various types of judicial
office holders that comprise the judicial establishment of England and Wales and
there is no need to repeat that here. The present case involved comparison
between a full-time salaried Circuit Judge and a part-time fee-paid Recorder.
There is also a useful summary of the way in which the administrative system
operates in terms of providing work to Recorders and how the various Circuits
in England and Wales are allocated their sitting days, at paragraphs 27 and 28
of the Judgment. The basic facts of the case were not in dispute.
5.
The Claimant was an experienced practitioner at the Bar who was first
appointed as Assistant Recorder in 1996 and then Recorder. Between 2002 and
2015 more of his working time was spent in a judicial capacity as a Recorder
than as a Barrister. While he was required to sit for a minimum of 15 days per
year he, throughout his time as a Recorder, has sat far in excess of that,
completing the equivalent of four full years in just under 20 years of
appointment. The specific number of days he sat each year is set out by the Tribunal
at paragraph 34.
6.
When the Claimant was approaching his 70th birthday he wanted to
continue sitting and wrote to the appropriate person in the Respondent’s
administrative team with that request. His application was notified to the
team of Ms Amanda Brar. The process involved Ms Brar putting the matter on the
agenda for a meeting of presiding Judges and deciding whether to tell those Judges
that a business case could or could not be made out. For the purpose of his
claim, the Claimant identified a full-time Circuit Judge, HHJ Wilkinson, as a
comparator. HHJ Wilkinson was a full-time Circuit Judge in the London region.
His statutory retirement date was 72 rather than 70, although the Tribunal found
nothing turned on that. He applied for one of two options available to
retiring Circuit Judges, namely to be appointed as a Deputy Circuit Judge. In
short, HHJ Wilkinson’s application was granted, with reasons given to him at
the time confirming that there was a strong business case for his appointment
including that the Circuit had a shortfall of Judges in crime, that he was
offering flexibility and was authorised to continue to hear serious sex cases (ET
Liability Judgment paragraph 55).
7.
The Claimant received a letter dated 17 November 2015 notifying him that
the public interest test had not been met in his case for an extension of his
appointment as Recorder. The reasons he was given included that the recent
appointment of 15 new Circuit Judges would reduce current pressure on the
Recorder pool, that 16 new Recorders had been appointed with an expectation
that they would each sit for a minimum of 30 days and that whilst there
remained a shortfall of Circuit Judges across the South East Circuit, competition
for additional appointments would be launched in December 2015.
8.
One difference between the Claimant and HHJ Wilkinson was that the
latter held a serious sex offences ticket (“SSO ticket”) and so was available
to hear cases of that type. However, that difference was not a reason given to
the Claimant for a refusal to extend his appointment and the relevant witness
(Ms Brar) did not say in evidence that the difference was a significant one or
that the lack of the SSO ticket weighed against the Claimant when the business
case decision was made in respect of him. In any event, as the Tribunal records
at paragraph 61, there was no evidence as to the percentage of Crown Court work
which is SSO ticketed work or any evidence as to whether over a period of time there
was difficulty in covering that work. The Tribunal records further that the
evidence was that general criminal trials were also not capable of being
covered by the Circuit’s existing judiciary and so there was an increasing
backlog.
9.
The Tribunal’s conclusions on the issues identified are set out in
paragraphs 72 to 89 of the Judgment with the conclusion given at paragraph 90.
The Tribunal first recorded that it was not in dispute that HHJ Wilkinson was
an appropriate comparable full-time worker as he and the Claimant were engaged on
broadly similar work. So far as the treatment complained of is concerned, the Tribunal
recorded that the Claimant was not enabled to work on at the Crown Court after
compulsory retirement age in comparison with HHJ Wilkinson who was so enabled.
That treatment was less favourable because, as the Tribunal recorded at
paragraph 75 of the Liability Judgment, it meant the end of the Claimant’s
judicial career at his compulsory retirement age, contrary to his proposal to
extend it, whereas HHJ Wilkinson’s judicial career did not end at his
compulsory retirement age.
10.
Turning to the contentious question of whether the less favourable
treatment was “on the ground that” the Claimant was a part-time worker, the Tribunal’s
Reasons for the conclusion that it was on that ground are expressed in the
following terms:
“76. Ms Darwin submitted forcefully that the reason for the
difference in treatment was that HHJ Wilkinson was a “different type of
judicial resource” to the claimant. That was because: (1) he could do SSO
ticketed work; and (2) he was available at short notice for longer and/or more
complex cases and could do more work. We consider these in turn.
77. We accept that the SSO ticked weighed in favour of the
appointment of HHJ Wilkinson and that it was in the mind of the Presiding Judges
and Ms Brar at the time when the decision was made to push him forward for
appointment. It was a genuine, legitimate reason, not tainted by
discrimination and not applicable to the claimant.
78. However, it is far from clear that the lack of the SSO
ticket weighed against the claimant. In particular:
78.1. It was not mentioned in the
reasons which were put forward by Ms Brar at the 30 September 2015 meeting as
demonstrating the lack of a business case for him.
78.2. It was not mentioned in the
letter notifying the claimant that he had been unsuccessful.
78.3. It was not asserted by Ms
Brar (or anyone else) in evidence at this hearing.
If the SSO ticket were significant, and certainly if it were
as significant as Ms Darwin now contends, it would have been a simple matter to
tell the claimant. He might have had to accept it as an unarguable fact. The
finding that it weighed for the comparator that he had the SSO ticket does not,
in the circumstances here under consideration, persuade us that its absence was
a factor which weighed against the claimant when his application came for
decision on 30 September 2015. It might have been so, but it has not been
established by evidence.
79. Has the respondent separately persuaded us that the SSO
ticket was a pre-requisite of continued work as a judge in the Crown Court
post-retirement age, even if not considered in respect of the claimant? In a
sense, this goes to the justification defence, but it is also relevant to the
determination of the ground for the different treatment. Our answer is: no.
Cases are decided on the basis of evidence and there is a dearth of evidence
that might persuade us that the SSO ticket was such a pre-requisite and that
its absence would therefore be adversely determinative of the claimant’s
application in any event. As set out in our findings of fact, we had scant
material about the difficulty of covering SSO cases: we do not know what
percentage of sitting days are spent on them; we do not know what, if any,
percentage of the then-increasing backlog they formed; we do not know whether
in any financial year any SSO cases were delayed, not listed or put off. We
did not hear that Circuit Judges were excessively required to hear SSO cases.
The material which the claimant showed us (and about which he told us)
demonstrated that there is a huge need for general crime to be covered at the
last minute. If the SSO ticket were essential, we would have expected some
clear evidence.
80. It follows that although we accept that the
presence/absence of the SSO ticket was a distinction between the comparator and
claimant, the respondent, which here asserts it, has not proved that it is a
ground why the business case was not made out for the latter and thus why he
was not re-appointed.
81. In respect of the distinction advanced by counsel and Ms
Brar that HHJ Wilkinson would be more readily available, we find that this was
based on a general assumption about full-time judges who were retiring from
salaried office when compared to part-time judges who were expected to continue
in practice. Given the amount that the claimant had sat as a Recorder in the
six months leading up to his retirement, we concluded that it was not an
assumption which could legitimately be made about him. That is, it seems to be
incorrect. Further, decisions of this sort should properly be based on
evidence and not on assumptions. If the issue were a neutral one, it might lie
with the respondent to assert that it had made a mistake and that that mistake
was itself the reason or ground for the less favourable treatment, but the
assumption is not neutral: it is founded in the very distinction which is
impugned, namely the preferential treatment of full-timers over part-timers.
So if reliance were placed on this reason (which was also not mentioned at the
meeting or notified to the claimant), it would fall under the next head in that
it would be an unjustifiable assumption. For present purposes it tends to
support the conclusion that the less favourable treatment of the claimant was
on the ground that he was a part-time worker.
82. Was the ground for the more favourable treatment of HHJ
Wilkinson that he could, because of his previous experience (rather than his
availability or flexibility which we have dealt with above), deal with more
complex cases? In the explanations given to us, this is linked, at least in
part, to the notion that more complex cases tend to take longer and that Deputy
Circuit Judges can do them because they can sit for longer. To that extent, it
would again be on the ground that the claimant was a part-timer and there was
an inappropriate assumption against him. On the other hand, we have accepted
that the greater experience of a retiring Circuit Judge would mean that he was
more likely to be an appropriate judge for the most complex cases if they could
not be covered by the High Court or Circuit Judges in post. The claimant was
not told of this reason. It is not reflected in the documents showing the
decision against him. It is mentioned as a positive for HHJ Wilkinson. We
were not told that these more complex cases were particularly difficult to
cover. We conclude that if it were part of the ground on which the claimant
were not retained, it was a small part, so trivial that we need not consider it
further.
83. In summary in respect of Ms Darwin’s submissions, we
conclude that the claimant was not a significantly different judicial resource
from HHJ Wilkinson. Once assumptions that were made in respect of part-timers
are stripped out (limited flexibility; limited availability), there is only the
SSO ticket left and we have found that that does not explain matters in a
manner which causes us to conclude that it was the only ground or even a
significant ground for the difference in treatment.
84. We are influenced to a small extent in reaching our
conclusion about the reason for the difference in treatment by the lack of
evidence showing that any Recorder, with or without the SSO ticket, had been
re-appointed at the compulsory retirement age. To a yet smaller extent we are
influenced by the lack of any reference in the administrative Guidance (whether
in its headnote, at paragraph 6 or in the titles of the templates at Annex A
and Annex B) to the possibility of applications for re-appointment by Recorders
and by the failure to provide a suitable template for a Recorder’s business
case. More generally we reach our conclusions because of our rejection of the
reasons advanced by the respondent (through Ms Darwin’s submissions and the
evidence) for the difference in treatment. More overwhelmingly, we are influenced
by the unexplained use of the same statistical material to make a business case
for the comparator but against the clamant, summarised in (but not confined to)
our findings at paragraph 67 above.
85. Conclusion: We are satisfied that a significant, material,
effective ground for the difference in treatment between the claimant and the
comparator was that the claimant was a part-time worker.”
11.
Having reached that conclusion, the Tribunal turned to questions of
whether the less favourable treatment on the ground of part-time working had
objective justification addressing the issues of business need, whether
treatment was reasonably necessary and proportionality. Its conclusions on
objective justification are in the following terms:
“Business need?
87. We accept, of course, that there was a business need for
the respondent to cover the criminal (and civil) cases coming for hearing, to
avoid an increasing backlog and to use its allocation of sitting days fully and
efficiently, as Ms Joyce told us. We accept that dealing with SSO cases (which
the claimant could not) was a priority. So too was dealing with bail cases and
it was a priority in respect of which, at this time, the respondent was
significantly falling behind. That was something with which the claimant could
deal. These are all significant business needs, consonant with the delivery of
criminal justice which, we accept, is the respondent’s business.
Reasonably necessary?
88. We are not persuaded that the respondent has proved that
it was reasonably necessary to require the claimant to hold the SSO ticket or
that there was any other reasonable necessity for not making a business case
for him. Our reasons are as follows:
88.1. The respondent has not
persuaded us that there was a reasonable business need that judges kept on
(which we use to include extensions, new appointments and re-appointments)
after retirement age must have the SSO ticket. The mere fact that all recent Deputy
Circuit Judges were so ticketed does not establish it: indeed, it might tend to
a conclusion that the need was satisfied. The respondent could have so
persuaded us, by provision of cogent evidence in the form of statistics about
the number of cases; the number of sitting days; the backlog; the imbalance of
SSO cases beyond judicial capacity. It did not do so.
88.2. Alternatively, it could have
shown that no general crime cases were turned away or left uncovered by judges
or adding to the backlog and so on. The fact that the bail case target was
being missed tends to support the business case that the respondent made to the
effect that it needed more Recorders and more Circuit Judges generally, while
putting forward a business case for HHJ Wilkinson’s new appointment. The
complement of the criminal judiciary was short of what was required, we
accepted from the business case for HHJ Wilkinson. The criminal judiciary was
hard pressed, but we have not been shown that it was so only or predominantly
in respect of SSO cases. It appears to be across the board, including for
general crime. That is indicated by the fact that the respondent was applying
to lift the ceiling for which Recorders could sit, not said to be just in
respect of SSO-ticketed Recorders.
88.3. Further, we find the reasons
given to the claimant were incomplete and therefore partial or misleading. For
the most part (save in respect of the SSO ticket) the same business case could
have been made for the claimant as was made for HHJ Wilkinson, but instead
identical facts were presented differently to support different conclusions.
The claimant was in effect told that there was or would soon be no shortfall of
judges to deal with the criminal caseload, but that was incorrect - at least,
if, as we have accepted, what was put to the Lord Chancellor and Lord Chief
Justice on behalf of HHJ Wilkinson was correct.
88.4. It is more difficult for the
tribunal to accept that something is reasonably necessary when it would have
been easy (and not in any way offensive or undermining offensive) to have told
the claimant, but he was not so informed about the need for an SSO ticket, or
dealing with more complex cases for that matter. Of course, as a matter of
logic and precedent, it could still be reasonably necessary for continued
appointment that the judge must have the SSO ticket, but cogent evidence should
be provided if an account suggested, albeit ineffectively as we found, for the
first time in witness statements (not having been put in contemporaneous internal
notes, notified to the claimant or pleaded) is to be relied upon. There was no
such cogent evidence.
88.5. We accept that good
availability and flexibility with dates and as to where the Judge would sit,
was reasonably necessary. We deduce that HHJ Wilkinson would not have been
appointed if he were not so available. However, the respondent did not know
about the claimant’s position: rather, if it considered the matter at all, it
did so on the basis of a discriminatory assumption. His history of sitting was
not something which (if it were considered, as to which we are unsure) could
properly have been used against him in view of the number of times that he had
sat in the last half year. Further, it was not something that was reported to
him.
88.6. Finally, under this head, we
are not persuaded that it was shown to be reasonably necessary that the
claimant be rejected because there was a sufficient judicial complement to use
the region’s sitting day allocation. We refer to our finding that a number of
salaried criminal Circuit Judges in the South East region were applying to
reduce their sittings from full-time to a lesser percentage at precisely the
same date as the claimant sought re-appointment. A 10% reduction for one judge
would have created a need for 21 additional sitting days per annum; a 20%
reduction, 42 days. No reason has been suggested as to why the wishes of the
salaried judiciary were rejected and they were compelled to work more days that
they wanted to do, at the very time when the claimant who wished to work
was not allowed to do so. The shortage of Circuit Judges, reduced pool of
Recorders and backlog of cases in the Crown Court were the only factors
recorded in respect of rejecting these applications. Each could equally have
counted in favour of the claimant. Rather than tending to show the achievement
of a reasonable business need for the non-appointment of the claimant (even
without the SSO ticket), this appears to show, to use a phrase we suggested to
Ms Brar, a lack of joined-up thinking. Ms Darwin submitted that this is not
how the claimant had initially put his case. We agree that it was not. We are
satisfied that that is because he is not here putting his case, but rather
using material which became available to him in the course of the proceedings
to undermine the respondent’s assertion about the existence of a business need
(not pleaded), that it could fully use its allocation of sitting days without
re-appointing him.
Proportionality?
89. The claimant could do bail cases; he could do fraud
cases; he had good availability and flexibility. The respondent had backlogs
and a shortage of judicial resources. We have not found any basis on which we
could say, in this case, that the respondent has established that it was a
proportionate means of achieving the respondent’s business aim that the
claimant was refused a business case that would have enabled him to go on
sitting. We make clear that we are deciding just this case. As our findings
of fact and individual conclusions above make clear, we are substantially
pushed towards the conclusion which we have reached by the lack of evidence
about the need for SSO tickets upon which the respondent now relies so
heavily. The evidence we received tended to establish that there was no
business need to refuse the claimant, because there was, on the respondent’s
own case as made out a few days later for the comparator, surplus work to be
done and a shortage of judicial resources. Further, although, of course, it is
for the respondent, not us, to make proper decisions and allocate its resources
appropriately, if the respondent had enabled the claimant to be re-appointed,
it could probably also have accommodated some full-time criminal Circuit Judges
seeking to reduce their working percentage. The refusal to put forward the
business case was the opposite of proportionate: the discriminatory effect on
the claimant (the loss of his part-time work) has not assisted the respondent
with any identifiable business aim and is not outweighed by any identifiable
benefit.”
The Respondent’s Arguments on Appeal
12.
The first ground on which the Respondent challenges the Tribunal’s Decision
involves a claim of procedural impropriety. Ms Darwin contended that the Tribunal
had determined the Claimant’s case in his favour on grounds other than those
relied on by the Claimant. She submitted that the Claimant’s case at the
liability hearing was that any extension of his appointment should be on the
same terms and conditions as a Deputy Circuit Judge. There had been evidence
about the basis on which the Claimant could hold office after the age of 70 and
it was suggested to the Respondent’s witness Ms Brar that he could be offered a
“zero hours contract” such as that given to Deputy Circuit Judges rather on a
Recorder’s terms and conditions. The Tribunal appeared to accept the Respondent’s
position that the Claimant could not have had extended tenure on the same terms
and conditions as a Deputy Circuit Judge but would have to have his office
extended on the basis of being guaranteed 15 paid sitting days per year. Ms Darwin
submitted that the Tribunal ought not to have tried to clarify this matter in
the subsequent Remedy Judgment, but if the Liability Decision was to the effect
that the Claimant’s extension could only be on the terms and conditions of a
Recorder, then the Tribunal ought to have considered the compatibility of
section 26(5) of JUPRA 1993 with the Part-time Workers Directive,
something that had been foreshadowed during closing submissions. Counsel
argued that the effect of the Tribunal’s Decision as now understood, was that
the Respondent was required to treat the Claimant more favourably than a full-time
comparator, who had no guarantee of any sitting days. The purpose of the Directive
and the 2000 Regulations is to ensure that part-time workers are not
treated less favourably, but it could not be said that the different treatment
of a Claimant and his comparator is synonymous with less favourable treatment.
The clear authority for that proposition could be found in Chief
Constable of West Yorkshire Police v Khan [2001] ICR 1065.
13.
So far as the test for interfering with a decision where procedural
error or material irregularity is established is concerned, reference was made
to Connex South Eastern Ltd v Bangs [2005] ICR 763. That case
dealt with a different type of irregularity but it is clear from paragraph 43(7)
that the correct approach is that where procedural error or material
irregularity is established, the question is whether there is a real risk that
a litigant has been denied or deprived of the benefit of a fair trial of the
proceedings and where it would be unfair or unjust to allow the delayed
decision to stand. Reference was made also to the detailed summary of cases
concerned with procedural irregularity by HHJ Hand QC in the case of NHS
Trust Development Authority v Saiger & Others UKEAT/0167/15/LA.
14.
A secondary position was taken on the first ground which was that, even
if the Tribunal was entitled to determine the Claimant’s case on the basis that
he should have been extended on the same terms and conditions as a Recorder as
he had been previously, then regard should have been given to the Respondent’s
case that this would have rendered the Claimant a different kind of judicial
resource from HHJ Wilkinson because he would have to be guaranteed 15 paid
sitting days per annum and that this material difference explained any
difference in treatment between the Claimant and his comparator and/or amounted
to sufficient objective justification. Ms Darwin submitted that, as the Tribunal
itself had recorded at paragraph 68, it decided to disregard this part of the Respondent’s
case despite having recorded that the argument was made in closing
submissions. Ms Darwin referred to paragraph 6 of the Tribunal’s Judgment
which she contended amounted to the Tribunal accepting the Claimant’s argument
on the interpretation of section 26 of JUPRA. She referred also to the Claimant’s
skeleton argument to the Employment Tribunal (at paragraphs 28, 29 and 38
thereof) on this issue and the notes of cross-examination of Ms Brar. She
submitted that it was not the Claimant’s case that he should continue as a
Recorder; his case was that he wanted to work on the same terms and conditions
as a Deputy Circuit Judge. As the Claimant realised that continuing on his
current terms and conditions would illustrate a material difference between him
and HHJ Wilkinson that mattered for causation and justification, it was a
serious procedural irregularity for the Tribunal to decide the case as it did.
In any event it was submitted that the Tribunal’s reasoning in this section was
inadequate.
15.
The Respondent’s case was essentially that Deputy Circuit Judges were
appointed in preference to extending the work of Recorders who had attained
statutory retirement age because the latter had to be given a minimum of 15 days
sitting per year. That difference went clearly to the issue of why the Claimant
was treated differently from his comparator and to justification. There was
ample evidence on the matter and the Claimant was cross-examined about it, the Tribunal
had erred to take into account the argument about guaranteed minimum days as a
reason for different treatment and so had failed to address the Respondent’s
case.
16.
The second ground of appeal relates to a large number of adverse
findings made by the Tribunal about matters which the Respondent alleges had
not been raised during the course of the hearing. Ms Darwin accepted that each
example was insufficient on its own to merit interference, but cumulatively
they could vitiate the Tribunal’s Decision. Relying on the case of Neale
v Hereford and Worcester County Council [1986] ICR 471 at page 486 it
was submitted that it is potentially unfair for a Tribunal to rely on matters
which occur to it after the hearing and which have not been mentioned or
treated as relevant without the party against whom the point is raised being
given the opportunity to deal with it, unless the Tribunal could be entirely
sure that the point is so clear that the party could not make any useful
comment in explanation. Ms Darwin produced a list of 16 adverse findings with
comments about what the Respondent’s concern in relation to each was. She
identified about five of those as particularly important. For example she
stated that it was an adverse finding that the Tribunal had impliedly found (Liability
Judgment paragraph 24) that the Respondent’s main witness was not a truthful or
honest witness. In that paragraph the Tribunal states only that two witnesses
were impressive (the Claimant and Ms Joyce) and so one can infer that they were
not impressed with Ms Brar. There was no direct attack on Ms Brar’s
credibility by the Claimant and so the Tribunal was wrong to make such an
adverse finding. In Doherty v British Midland Airways Ltd [2006]
IRLR 90, the EAT had found that a Tribunal misdirected itself if it made
adverse findings relating to a witness’ credit and honesty that were not put to
her and were not advanced in argument. Ms Darwin submitted that the Tribunal
here had fallen into the same error. Another example included the finding (at
paragraph 27) that Deputy Circuit Judges are allocated sitting opportunities in
the same way as Recorders. Ms Darwin pointed to certain passages in the evidence
of Ms Joyce and Ms Brar to the effect that Deputy Circuit Judges are drawn on
as needed in order to meet the business needs of the courts and are approached
to sit as a last resort. Deputy Circuit Judges are not sent vacancy lists.
17.
Counsel submitted that a particularly important adverse finding that she
wished to challenge was that the Employment Tribunal found, particularly at
paragraph 40, that the template provided by the Respondent and entitled “Business
Case for the Application: Extension of Appointment” did not apply to Recorders
and that the Respondent did not provide a suitable template for a Recorder’s
business case. She submitted that this finding was wholly unjustified. She
said that the unchallenged evidence of the Respondent’s witnesses was that the
template in question did apply to Recorders. There were two templates before
the Tribunal - Annex A and Annex B - and the Tribunal appeared to have confused
the two. The matter was particularly important as the Tribunal had noted (at
paragraph 84) that it had been influenced in its decision by the Respondent’s
failure to provide a suitable template for a Recorder’s business case.
18.
Two other related findings challenged by Ms Darwin were the finding (at
paragraph 43) that Ms Brar was the decision maker in relation to whether or not
a business case for an application such as that made by the Claimant could be
made out and at paragraph 44 that the approval of the Lord Chief Justice or
Lord Chancellor was a technicality. She referred to parts of the notes of
evidence where it appeared that Ms Brar was cross-examined on the matter and
disputed that she was the decision maker. She advised the Presiding Judges who
could support her view or not. It would have been unrealistic for those
Presiding Judges to give evidence. In relation to the Lord Chief Justice and
the Lord Chancellor, there was unchallenged evidence from Ms Joyce that
business cases are considered by those two individuals who will take into
account issues such as resources when determining whether the public interest test
in section 26(5) JUPRA has been met.
19.
Finally, a challenge was made to the Tribunal’s finding (at paragraph 79)
that there was scant evidence and/or a lack of clear evidence that the Respondent
needed Judges with an SSO ticket to sit and related to that, that there was no
evidence whether there was a difficulty in covering the SSO work. Ms Darwin
referred to Ms Brar’s evidence which, she said, had been unchallenged, that
there were pressures listing SSO cases in the Crown Court, the Tribunal itself
found (at paragraph 59) that getting SSO cases on for trial was a priority.
Having highlighted what she contended were the most serious adverse findings on
matters not properly raised with the Respondent or the Respondent’s witnesses
during the hearing, it was submitted that taken together these illustrated a
serious procedural error or in the alternative a failure to provide adequate
reasons or alternatively were perverse findings.
20.
No stand alone argument was presented in relation to the third ground of
appeal which was a reasons challenge already addressed.
21.
The fourth ground of appeal related to the issue of availability or
flexibility on the part of Recorders and Deputy Circuit Judges as distinct. A
central part of the Respondent’s case on justification had been the contention
that the Claimant and his full-time comparator HHJ Wilkinson were in a
materially different position on this issue. It was accepted that all Deputy Circuit
Judges are retired Circuit Judges and that in contrast Recorders are appointed
from the ranks of practising Barristers or Solicitors and will usually continue
to work as such. The Tribunal found (at paragraph 88) that HHJ Wilkinson,
having just retired from a full-time role as Circuit Judge and having chosen to
apply to be appointed as a Deputy Circuit Judge on his retirement had good
availability to sit. However the Tribunal went on to hold (at paragraphs 66
and 77) that the Respondent’s assumption that Deputy Circuit Judges would be
available to sit at shorter notice and for longer cases than Recorders was a
discriminatory assumption that favoured full-time workers. Accordingly the
reliance on the greater availability of Deputy Circuit Judges was said to
support the conclusion that the less favourable treatment of the Claimant was
on the ground that he was a part-time worker. This ignored that the Respondent’s
case was predicated on objective experience which had been accepted by the
Employment Tribunal and was unchallenged. It was not a discriminatory
assumption but an actual undisputed difference between the two types of
resource. The Tribunal had accordingly erred in law in concluding that it was
a discriminatory assumption and unjustifiable.
22.
The sixth ground of appeal contended that the Tribunal had failed to
have regard to the compulsory retirement age for Recorders and that it had
wrongly conflated the Respondent’s continued need for Recorders under that age
to sit in crime with the existence of a business need for the Respondent to extend
the appointment of Recorders over the age of 70. Ms Brar had given evidence
that Recorders tended to want to sit more than the 30 days that is now the
minimum and that there were many who had not yet managed to achieve the 30 day
minimum. The Respondent has an obligation to provide the number of guaranteed
minimum sitting days to Recorders but has no such obligation to retired
Recorders. The Tribunal had erred in assuming that any Recorder keen to sit
for at least 15 days would be provided with work. The Claimant had accepted in
cross-examination that allocating sitting days to him would take away work from
the next generation of Recorders, a more diverse group in terms of race and
gender than him and his peers. In contrast Deputy Circuit Judges do not create
any conflict in terms of inter-generational fairness because they are used as a
last resort judicial resource. A finding that the Respondent needed both more
Recorders and more Circuit Judges was only part of the picture.
23.
Ms Darwin argued the fifth and seventh grounds of appeal together.
These were attacks on the Tribunal’s assessment of the Respondent’s objective
justification defence. First the Tribunal had erred in disregarding the Respondent’s
own assessment of the need for work to be done by the fee-paid and salaried
judiciary during the relevant period as determined by the sitting day allocation,
the informal operating model and the allocation of central funding to sitting
days. The Tribunal had expressed the view that “nothing actually turns on” the
criminal sitting day allocation and found (at paragraphs 79, 88.2, 87 and 89)
that there was a need for general crime to be covered at the last minute as
support for its conclusion that there was work available for the Claimant and
that not to extend his appointment was therefore not justified. Reliance on
the demand for Criminal Judges and/or the potential work available was an
irrelevant factor and such reliance on it had led the Tribunal to a perverse
conclusion.
24.
While earlier grounds of appeal had already raised a perversity
challenge, Ms Darwin concluded her arguments in relation to the Liability Judgment
by submitting that the Tribunal had erred in taking into account another
irrelevant consideration, namely that the Respondent had rejected applications
by some Circuit Judges to work part-time. In so far as this factor had
influenced the Employment Tribunal in its overall decision, it was another
reason why the Judgment could not stand.
25.
Ms Darwin had presented her written argument and initially her oral argument
on the basis that the Claimant had marked a cross-appeal in relation to the
correct interpretation of the phrase “the treatment is on the ground that the
worker is a part-time worker” within Regulation 5(2)(a) of the 2000 Regulations.
When I pointed out that there was no cross-appeal marked, something that Mr Crosfill
confirmed was the position, Ms Darwin accepted that this was not a matter for
my determination in this case. However, in light of conflicting authorities on
the point, I was invited to make some comment on it.
The Claimant’s Response in the Liability Appeal
26.
Mr Crosfill submitted that in relation to ground 1 it was important to
consider what the Tribunal was invited to decide. The Claimant, nearing retirement,
had realised that he could ask for an extension of his appointment as a
Recorder and submitted an appropriate application. He was told that there was
no business case for extension as there would soon be plenty of judicial resources.
On discovery that HHJ Wilkinson was allowed the opportunity to work beyond
retirement age in similar circumstances, it became clear to the Claimant that
he had been treated less favourably as a part-time worker. There was no real
dispute that the named full-time comparator was an appropriate one or that the Claimant
had suffered less favourable treatment. The real issues were causation and
justification. The Respondent’s arguments about procedural irregularity had to
be understood against that background. It was wrong to suggest that the only
basis upon which the Claimant advanced his case was that he would be appointed
on the terms and conditions of a Deputy Circuit Judge. It was the Respondent
who submitted that the terms of any appointment of the Claimant would be the
existing terms available to Recorders. That was accepted by the Tribunal as
the correct position. No irregularity that created unfairness to the Respondent
had been established.
27.
In covering some of the issues raised by both the first and fourth
grounds of appeal, counsel explained that there had been two aspects to the
issue of flexibility put forward by the Respondent in oral submissions of the
hearing. In particular it had been argued that a Recorder permitted to work
beyond retirement age could only be offered the terms open to all Recorders and
secondly that the Tribunal should accept Ms Brar’s evidence that “Recorders do
not make themselves available for longer”. On the issue of the terms and
conditions of any offer it was common ground that Deputy Circuit Judges’ terms
were truly “zero hours contracts” as there was no minimum guarantee of any
work. The Respondent’s argument that the Claimant could only be offered
extension on his existing terms of no less than 15 sitting days per annum related
to “contractual flexibility” and to a minimum obligation. The second argument
for the Respondent concerned what Mr Crosfill referred to as “actual flexibility”.
28.
Both issues of contractual flexibility and actual flexibility were fully
aired before the Tribunal, which made appropriate findings and decided the
matter in favour of the Claimant. The Respondent could not seek to establish
contractual flexibility as a basis for the difference in treatment because that
would fall foul of the Regulations. The Respondent was clearly wrong to put forward
any argument that section 26(5) of JUPRA was incompatible with the Part-time
Workers Directive. While it had not been accepted on behalf of the Claimant
that the only terms that could be offered to him were a guaranteed 15 days
minimum sitting and that position had been put to the Respondent’s witness, it
was open to the Tribunal to accept, as it did, that only extension as a
Recorder could have been granted. No procedural irregularity arose as the
whole issue had been ventilated in evidence. On actual flexibility, the Respondent’s
witness had not been cross-examined because the evidence was in relation to a
general assumption only. In any event the Claimant had already emphasised his
ability to work as flexibly as his comparator. If the Respondent’s concern was
in relation to actual flexibility that too would discriminate against the Claimant
as a part-time worker. Any assumption that all members of a group would act in
the same way exhibits a discriminatory thought pattern. Accordingly the
evidence that in the Respondent’s general experience Recorders were less
flexible than Deputy Circuit Judges did not advance the Respondent’s position.
29.
It was clear from paragraph 68 of the Judgment that the Tribunal had
considered the contractual flexibility issue and had understood that was not
helpful to the Respondent. The potential cost to the public purse simply did
not arise in this case because all of the evidence militated against any
likelihood that a Deputy Circuit Judge would sit for less than 15 days per
annum. HHJ Wilkinson was never going to be a cost free resource. Accordingly,
on the factual circumstances of the case before it, the Tribunal did not have
to decide the contractual flexibility point. In summary, there had been
submissions in evidence on both types of flexibility and the Tribunal had been
entitled to reach the decision that it did. The alternative argument for the Respondent
on the first ground was really the same point put a different way. No informed
reader of the Judgment could conclude anything other than that the Tribunal had
decided that the Claimant would have to be taken on as a Recorder on the same
terms and conditions as previously and while that guaranteed a minimum of 15 days
sitting, that difference in terms between him and his comparator did not
present any relevant basis for a difference in treatment.
30.
Mr Crosfill submitted that in relation to the argument about failing to
take account of financial implications (the sitting day allocation argument),
the Respondent’s submissions failed to take into account that its own case in
seeking to extend the comparator’s work beyond retirement age was that they
were short of judicial resources and so had to rely more on Recorders. If the Respondent
had refused to extend the Claimant’s appointment and had not allowed the comparator
to work beyond retirement age because there was sufficient capacity using
current resources, then no issue would have arisen. However on the facts led,
the issue of sitting day allocation was an entirely neutral one as between the
applications of the Claimant and his comparator. It was clear from the Judgment
as a whole that the Tribunal understood the sitting day allocation issue.
31.
In response to the submissions made in support of the second ground of
appeal, Mr Crosfill dealt first with the contention that adverse findings about
Ms Brar’s honesty had been made. He accepted that, had the Tribunal done so, then
the decision in Doherty v British Midland Airways Ltd [2006] IRLR
90 would be in point. However, the Tribunal simply had not made any finding of
dishonesty in this case. It was clear from paragraph 24 that what the Tribunal
had done was praise the particular honesty, integrity and truthfulness of one
witness from each side, namely the Claimant and Ms Joyce. No finding of
dishonesty on the part of Ms Brar could be implied from that. Accordingly, the
first so-called adverse finding relied on for the Respondent could be ignored.
32.
The next example given by Ms Darwin had been the Tribunal’s finding (at
paragraph 27) which she had characterised as being that Deputy Circuit Judges
are allocated sitting opportunities in the same way as Recorders. She had
challenged that and pointed to evidence of Deputy Circuit Judges being drawn on
only as a last resort. Mr Crosfill pointed out that paragraph 27 of the Judgment
was related to the background findings on the administrative system. It did
not contain any specific finding that Deputy Circuit Judges are allocated
sitting opportunities in the same way as Recorders. It mentions only that
Deputy Circuit Judges might be provided at the same time as Recorders with
lists of cases which are to be heard asking whether they are willing to sit.
In any event, this issue had no bearing on the central questions that the
Tribunal had to decide. It was not a part of the Tribunal’s reasoning.
33.
So far as the issue about the template was concerned, the issue of
whether there was a template designed for setting out a business case for an
extension of appointment for a Recorder was all canvassed at the hearing before
the Tribunal. The Respondent had contended that the template at Annex A would
be appropriate for the Claimant but the Tribunal found (at paragraph 40) that
the administrative staff had a different impression from the guidance and in
any event that position did not accord with the headings on the templates. The
Tribunal concluded that there was no relevant template for extension of
appointment of a Recorder. That was a finding it was entitled to reach on the
evidence and there had been evidence and submissions on it and so no
irregularity arose. The issue was not so much whether one of the templates
could have been used for an extension for a fee-paid Judge but rather that the
guidance did not identify a relevant template. Again and contrary to Ms
Darwin’s submission, this issue was not identified by the Tribunal as something
that was relevant to their reasoning, which is clearly set out at paragraph 84.
34.
There was also a response to the contention on behalf of the Respondent
that the Tribunal had made findings that Ms Brar was the decision maker and
that the Lord Chief Justice or Lord Chancellor’s role was a technicality. Mr Crosfill
submitted that one had to distinguish the question of where ultimate decision
making power lay so far as appointing the Claimant or his comparator was
concerned and the decision about whether or not there was business case to put
forward in relation to an applicant. The Tribunal had been given no detail in relation
to how a business case was considered and what weight was put on a
recommendation that there was a business case. It had decided, perfectly
correctly, that it was for Ms Brar alone to decide whether there was a business
case to put forward. It was accordingly correct for the Tribunal to state (at
paragraph 43) that “whether or not a business case can be made out is Ms Brar’s
decision”. There was no evidence to contradict that conclusion. Ms Brar’s
witness statement spoke in terms of advising the Presiding Judges that “… we
were not able to put forward a business case” and the Judges had agreed
with her position. The uncontroversial evidence, therefore, was that a business
case was the launch pad for any possible appointment and that Ms Brar alone
decided whether a business case had been made out. As neither the Claimant nor
his comparator could have been appointed without a business case having been
made out, Ms Brar was effectively the one with the power to decide who would go
forward. The Tribunal had also been correct to conclude that the Lord Chief
Justice and Lord Chancellor did not make the decision as they had no role to
play in deciding who was put forward in the sense of a business case having
been made out. Accordingly the Respondent could have no complaint about these
findings.
35.
The last specific finding singled out for challenge by Ms Darwin was
that the Tribunal found that there was scant evidence and/or a lack of clear
evidence that the Respondent needed Judges with an SSO ticket to sit and also
that there was no evidence whether over a period of time there was difficulty
in covering the SSO work. Mr Crosfill submitted that as the Tribunal had
already acknowledged in the Judgment that there was a value to having an SSO ticket
and that there was a need to have SSO ticketed Judges, the Respondent’s
reliance on that factor as being one favourable to the comparator was not in
question. The real issue was whether there was any evidence that there was in
fact a shortage of SSO ticketed Judges in the existing pool and related to
that, whether it could then be regarded as a pre-requisite for extension of
appointment that a Judge held such authorisation. Mr Crosfill drew the analogy
between a post for a Philosophy lecturer where a need for a need for a PhD in
Philosophy rather than Sociology would be obvious. However if an advertised
job was for a chef and the job happened to go to someone who held a Philosophy
degree, the reason for that choice would be less obvious. It was for the Respondent
in this case to establish a need for someone with an SSO ticket. That could
not be done by assertion and so the Tribunal was correct in highlighting that
there had been at best scant evidence on this point. Critically, as recorded
at paragraph 61 of the Judgment, the Tribunal had raised the absence of
evidence on this point with counsel for the Respondent and invited the
submission of statistical or other significant relevant evidence. However as
it was not forthcoming, the Tribunal was forced to decide the matter on the
available information. Counsel for the Claimant submitted that none of the
points raised by the Respondent in ground 2 were anything more than trivial and
on examination could all be seen to be wrong or misleading. The overall ground
was a complaint of a lack of a fair trial and the Respondent had failed to
point to anything illustrative of unfairness.
36.
While the Respondent had not presented a stand-alone reasons challenge
but had interspersed comments about a lack of adequate reasoning into some of
the grounds, Mr Crosfill submitted that there was simply no basis for
contending that the essential requirement of reasons being sufficient to enable
a party to know whether it had won or loss had not been complied with. The
Tribunal had identified the issues, set out the applicable law and factual
background, made appropriate findings in fact and set out their conclusions on
each issue and the reasons for reaching those conclusions.
37.
Turning to the sixth ground of appeal, Mr Crosfill argued that this
ground was misconceived. The legislation does not permit or require the Claimant
to compare his treatment with that of a younger part-time worker. Both the
Claimant and his full-time comparator could be described as “pale male and
stale” so no relevant point about intergenerational fairness or of diversity
arose. The context was the difference in treatment between two men over the
age of 70. The clear evidence in the case was that there was a shortage of
judicial resources and so the impact on different types of judicial resource
applied for work was the same. Again the obligation of the Respondent to
provide a guaranteed minimum of sitting days for Recorders but not for Deputy Circuit
Judges was of no significance because the comparator in fact worked for over 80
days in an eight month period once appointed as a Deputy Circuit Judge. More
importantly, the business case for HHJ Wilkinson was put on the basis that he
would in fact work having made himself available to do so.
38.
In responding to the issue of objective justification (ground 7) counsel
noted that at paragraphs 14 to 16 of the Judgment the Tribunal had correctly self-directed
on the proper test of justification. It had expressly accepted the Respondent’s
proposition that in assessing justification it must have regard to the business
needs of the Respondent. There could be no dispute that the Respondent had
reasonable needs such as its obligations to Recorders under the compulsory
retirement age, whether it could meet the sitting day allocation from its
existing judicial resources and so on. However, those reasonable needs could
not justify the prima facie discrimination that was found to exist in
this case. Providing examples of extensions having been given to previous
full-time Circuit Judges and not to part-timers was not shown to be justified
by the fulfilment of those reasonable needs. The Respondent had been unable to
justify the difference in treatment between those full-timers and the Claimant
and had never given any explanation for the discriminatory treatment. On the
available evidence it was clear that if the Claimant was not permitted to extend
his appointment then it would fall on the other Judges to complete the work he
had done previously. If he was permitted to sit he could have continued to do
that work as there was a shortage of Judges. There was no need for additional
funding. There was evidence before the Tribunal that it was thought that the
appointment of HHJ Wilkinson was cost neutral and there was no material
distinction between him and the Claimant. There was an evidential basis for
assuming that the Claimant would have been allocated at least 15 days of work
if his appointment was extended because he had been doing in excess of that
prior to his retirement date all within the sitting allocation. The Tribunal
was entitled to take into account the evidence that some Judges were asking to
work less and had been refused because of the shortfall in judicial resources.
In all the circumstances the Respondent had failed to satisfy the test of
justification.
39.
In so far as perversity had been argued on behalf of the Respondent, Mr Crosfill
submitted that not only had the high hurdle for perversity not been overcome,
the Practice Direction had not been followed in that there was no detail
given by the Respondent as to why specific findings in fact could be said to be
perverse. The Respondent had been unable to point to any finding that had no
basis in evidence whether in direct oral evidence, in documents submitted to
the Tribunal or on inferences drawn from the primary facts. Any type of
evidence oral or written was available to support findings - Hough and APEX
v Leyland DAF Ltd [1991] IRLR 194.
(II) Remedy
The Tribunal’s Judgment
40.
Following a remedy hearing, where both sides had the same representation
as at the liability hearing, the Tribunal found that the Claimant would have
sat for 98 days in the year from January 2016; that he would have been extended
as a Recorder for a further year and he would have sat for 80 days in that
second year. It was considered just and equitable to award him compensation
for that loss and, having found that the Claimant had not failed to mitigate
his loss, the sum due was calculated at £36,796.67. That sum was awarded after
the Tribunal had informed parties of the conclusions in principle on the issues
in dispute so that the arithmetic could be carried out.
41.
The parts of the Tribunal’s Remedy Judgment that are significant in
terms of the remedy appeal include, first, the extent to which previous
decisions on liability required clarification, secondly, the way in which loss
had been assessed, and thirdly, the narrative in relation to informing parties
of the conclusions separately from the Written Judgment. So far as the first
of these is concerned, the relevant passages in the Remedy Judgment are in the
following terms:
“2. It transpired during Ms Darwin’s cross-examination of the
Claimant that she appeared to have misunderstood our judgment on liability. We
had held that the failure to extend the Claimant’s appointment as a Recorder
was less favourable treatment on the ground that he was a part-time
worker. Ms Darwin started to question the Claimant on the basis that we had
held that, if not the subject of unlawful discrimination, he would have been
reappointed on the same terms as a Deputy Circuit Judge, at least to the extent
that he would have had a zero hours’ contract (that is, with no guaranteed
minimum number of sitting days). We had not so held, as we thought we had made
clear from our statement of the law at paragraph 6; description of how the
matter was not pursued at paragraph 68; conclusion at paragraph 90.1; and the
terms of reserved judgment. We had accepted that the only way that a Recorder
could be reappointed was on a Recorder’s terms. The detail changed recently,
but for someone appointed when the Claimant was appointed, the terms both
required and guaranteed a minimum of 15 days a year. We held that the Claimant
would have been reappointed on his Recorder terms because:
● We had accepted the law
from Ms Darwin, as being that Recorders could only be extended as Recorders on
their existing terms and could not be appointed on terms applicable only to
current Circuit Judges or Deputy Circuit Judges;
● Had the defence been
pursued at the liability hearing on the basis that the Recorder’s 15-day
guaranteed minimum was the reason for that different treatment as between the Claimant
and the comparator District Circuit Judge, so that if reappointed it would have
had to be on Deputy Circuit Judge terms, we would have had to make appropriate
findings of fact. It would have been relevant to bear in mind that it was not
mentioned when their respective applications were considered or in the letter
notifying the Claimant that his application was rejected. However, if it were
made out on the facts, then as recorded at paragraph 68 of the Reasons, we
would have wanted to consider whether that reason for differential treatment
was itself unjustifiably discriminatory. Since, after an initial exploration,
Ms Darwin did not prosecute the defence on that basis, we did not decide the
matter, making clear that the issue of the lawfulness and relevance of the
different terms applicable to a Deputy Circuit Judge was not before us.
● The Claimant’s case was
pleaded on the basis of the existing law, namely that he should have been
granted an extension as a Recorder - the only position for which he could
apply. Paragraph 3 of the Particulars, recited that he had requested to extend
his sittings as a Recorder and alleged that the decision to reject that
request was part-time worker discrimination. His application for extension,
written on 2 September 2015, was to extend his term of office as a Recorder.
He had not applied to be and did not suggest that he had to be or should have
been appointed as a Deputy Circuit Judge or on those terms.
● Further and alternatively,
avoiding less favourable treatment of part-time workers does not mean that the
Claimant and comparator have to be treated identically, but rather that the
Claimant be treated not less favourably than the comparator.
3. Ms Darwin then advanced that appointment on Deputy Circuit
Judge terms was the only way the Claimant had put his case at the liability
hearing, referring to paragraphs 24 and 25 of the Claimant’s Note (for closing
submissions) to the effect that the Respondent could have limited any
reappointment to the Claimant making himself available purely on an ‘as and
when required’ basis. We did not understand and do not accept that that is how
the Claimant was putting his case. Rather, his case was put as at the third
bullet-point above and as at paragraph 18 of the Note to the effect that the
Claimant was denied the possibility of sitting beyond his retirement whereas
his comparator was afforded that possibility. At paragraphs 24 and 25, Mr Crossfill
was responding to the Respondent’s argument that the only basis upon which it
could, in accordance with the law, have extended the Claimant’s appointment was
on the same terms and conditions as he already had as a Recorder. He was
addressing, not accepting, an argument about how the Claimant was different
from the comparator.
4. In further exchanges, Ms Darwin made clear that she still
wished to cross-examine on the basis that the Claimant would only have been
reappointed on Deputy Circuit Judge zero hour terms, contrary to our actual
conclusion. For the Tribunal I proposed that while she could not by this
method undermine the conclusion we had reached, she would be permitted to
cross-examine and we would consider that position in the alternative, lest we
be held to have been in error as to our primary finding. Ms Darwin requested
an adjournment which we granted. When she returned, Ms Darwin informed the
Tribunal that she would not ‘at this time’ pursue her proposed line of
questioning. We now urged her to do so: it did not seem reasonable or
proportionate to plan to hold some point in reserve, possibly dependent upon
the outcome of an appeal. If, as it now was, the dispute was identified to the
Tribunal and if, as Ms Darwin appeared to wish to submit, it was relevant to
remedy, it was reasonable, proportionate and therefore desirable for the
Tribunal to be put in a position to make all relevant decisions. Ms Darwin
resolutely declined to resume her former intended stance. She would not seek
to advance the Respondent’s case on any basis but that the Claimant would have
been appointed as a Recorder on the terms applicable to Recorders in the
legislation. Later she objected to some of Mr Crossfill’s cross-examination on
the basis that he appeared to be enquiring about the zero hours’ position. We
declined to stop him, explaining that since we had considered it reasonable,
proportionate and therefore desirable for her to proceed on that basis, we
could hardly deter the Claimant from doing so.”
42.
The findings of fact made by the Tribunal and relevant to the remedy appeal
were in the following terms:
“16. If re-appointed, the Claimant would have sat as a
Recorder as much as he could. He had ceased to sit as an Immigration Judge in
March 2015 and did not apply to extend that role. He preferred to sit rather
than to pursue the more exhausting role, as he experienced it, of a practicing
barrister.
17. The Claimant told us that the demand for Recorder
sittings continued at a high level through 2015 and 2016. He had hearsay
evidence, not challenged in cross-examination, that the volume of emails
offering last minute sittings was as high now as when he was last working as a
Recorder and two Listing Officers had informed him that there is a shortage of
Recorders across the whole of the South East Circuit. We accept that the
Claimant is giving a truthful account of what he had been told and we know of
no reason why those of whom he enquired should have been untruthful.
18. Ms Brar gave evidence of new Circuit Judge appointments,
but, as indicated above, without taking into account retirements. There was a
long list of retirees in the bundle. The result is that it is unclear whether
the actual number of Circuit Judges available in the South East and London
Crown Courts have gone up or down. We accept that the sitting day allocation
for the South East and London has reduced by 2% this year (2016-17) and is
likely to reduce again next year. We do not conclude that this necessarily
means that the availability of fee-paid sitting days has reduced, because it
would not have done so if the number of Circuit Judges (or the percentages at which
some of them sat) had reduced.
19. Considering these two accounts, we are not persuaded that
there would have been any significant reduction in available sitting days for
Recorders since the time when the Claimant retired, but we conclude that a probable
2% reduction is made out.
20. Deputy Circuit Judge Wilkinson sat for 83.5 days in March
to October 2016, 56 of them requiring an SSO ticket. Deputy Circuit Judge
Eccles sat in Oxford Crown Court for 39 days in the five months from May to
September 2016, thus averaging about eight days a month.”
43.
Having then found that the Claimant’s recent past sitting performance as
a Recorder was a more realistic indicator of his likely future sitting
performance than either his overall historic average from 2002 or the average
of the sittings of other Recorders, the Tribunal made the following further
findings:
“25. The system for allocating work to Deputy Court Judges is
different. Ms Brar explained that they are not invited to book ahead and are
not sent the emailed list of vacancies. Rather, if hearings are still
uncovered after Recorders have had the opportunity to respond, Ms Brar’s team
telephones individual Deputy Circuit Judges with the uncovered hearings in mind
and invites them to sit on a particular case. She did not tell us how the team
selected which Deputy Circuit Judge would be phoned. It could contribute to
the widely varied sitting figures which we saw. It might work less neutrally
or even-handedly than the Recorder booking system, because individuals are
chosen for offers of work. In any event, Deputy Circuit Judges are, at least
in theory, at the bottom of the pecking order for sitting allocation. In order
for DCJ Wilkinson to sit 83.5 days in seven months (pro-rating to 143 days per
annum) at least that number of days were not covered by the regions’ High Court
Judges, Circuit Judges or Recorders.
26. Ms Brar did not volunteer, but admitted in
cross-examination, that the Respondent has less than its full complement of
Circuit Judges in the regions with which we are here concerned. The complement
is calculated by factoring the sitting days at 80% for salaried Circuit Judges
and the rest for fee-paid judges (Recorders and Deputy Circuit Judges). On
this basis, the complement is short of Circuit Judges by 2% for the South East
region and 8% for the London region, where the comparator and Claimant could
also sit. That means that a greater number of days have to be covered by
fee-paid judges and, as we found at the liability hearing, there is also a
reduced complement of Recorders.”
44.
In setting out its conclusions on the issues before it the Tribunal’s
reasoning is in the following terms:
“How much would the Claimant have sat on initial
reappointment?
38. We have determined that absent discrimination the
Claimant’s post-retirement appointment would have been effective from
mid-January 2016. In calculating how much he would have sat, we are satisfied
that it does not assist to have regard to the average sittings of other
Recorders and that it is unhelpful to consider the long history of the
Claimant’s sittings. We prefer to work with his recent sitting history which
reflects what he was doing, wanted to do and would have gone on doing. We
consider that we should bear in mind at least one full year of sittings, to
allow for any seasonal variations or fluctuations. We have the figures for the
last seven months and before that the figures for the previous full year.
Pro-rating the last year appropriately produces an average of about 100
sittings per year. We factor in Ms Brar’s figure of a 2% decline in sitting
days and reduce that figure accordingly. So we conclude that in January -
December 2016 the Claimant would have sat 98 days, spread proportionately
across the year (which we mention to help with the calculations based on
changes in the rate of Recorders’ fees).
Would the Claimant have been reappointed?
39. The Claimant would have been reapplying in September 2016
for a further year’s sitting from January 2017. We are not persuaded that
there would be any reduced business case for the Claimant. The comparator (at
the bottom of the pecking order in terms of allocation of work) sat 83 days in
7½ months, averaging more than 10 days a month; DCJ Eccles averaged 8 days a
month or 96 days for a full year. They were obviously ready, willing and able
to sit as Deputy Court Judges and this information plus the Claimant’s hearsay
evidence shows that there is a lot of work for Recorders. It tends to show
need. We accepted from Ms Brar that it is likely that the total number of
sitting days allocated to the region will reduce again, although she was not in
a position to indicate by how much and the Claimant has persuaded us that there
continue to be shortages of Recorders across the circuit. It is not said that
there would be no work or less work for judges without the SSO ticket. As at
the present date, when the Claimant would be seeking reappointment, the
position is not identifiably different from what it was at this time last year.
We conclude that demand and business need are such that, absent
discrimination, the Claimant would be reappointed for a second full year,
effective from mid-January 2017.
How many days would the Claimant have worked in 2017?
40. We recognise that we are engaging in a speculative
exercise. If we were wrong in our determination that the Claimant would be
reappointed as a Recorder, we would consider that there was an 80% prospect
that he would be reappointed. It remains highly likely, because we know no reason
why it is not. We consider that the way forward is by the alternative
calculations:
● If reappointed in
accordance with our conclusion at paragraph 39 above, the Claimant would, on
the balance of probabilities, have sat for 80 days in the year. This takes
account of some probable reduction in sitting days and the 30 day Recorders all
coming fully online.
● Alternatively, if we reduce
the prospect of reappointment to 80%, we would feel it appropriate to reduce
the other variables. So we would abide by the 98 days sitting that we forecast
for the present year. Factored at 80%, this would again produce a total of 80
sitting days.”
45.
The separation of the giving of conclusions from the Judgment is
explained as follows:
“47. Having informed the parties of our conclusions, as at
paragraphs 38 - 46 above, we invited them to do the arithmetic, bearing in mind
the need to gross up sums above £30,000. They were unable to reach a
conclusion on the day and undertook to notify the tribunal of the final amount
by email, for incorporation into the Judgment. They have now done so and we
record, by consent, that after calculations which reduced for taxation all save
the first £30,000, then grossed up appropriately, the Respondent is ordered to
pay £36,796.67 compensation to the Claimant.”
The Remedies Judgment
46.
In presenting the appeal on remedy, Ms Darwin submitted that any
compensation awarded by the Tribunal required to be in respect of losses
attributable to any less favourable treatment of the Claimant in comparison
with his actual full-time comparator on the ground that he was a part-time
worker and was not justified. Regulation 8(9) of the 2000 Regulations,
which provides that the amount of compensation must be such as the Tribunal
considers just and equitable having regard to (a) the infringement to which the
complaint relates and (b) any loss which is attributable to the infringement
must be applied against that background. The Tribunal’s decision was flawed
because it had awarded the Claimant compensation on the basis that he would have
been treated like other part-time workers (Recorders under the compulsory
retirement age) rather than on the terms and conditions on which his full-time
comparator worked, which were the judicial equivalent of a “zero hours”
contract. In compensating the Claimant beyond those losses which were
attributable to an infringement of Regulation 5, the Tribunal had erred because
compensation on the basis that he would be treated more favourably than his
comparator had been awarded.
47.
It was submitted that in the Remedy Judgment the Tribunal had effectively
sought to amend its Liability Judgment. The Respondent did not accept that
paragraphs 2 to 4 of the Remedy Judgment amounted to clarification and
submitted that in so far as the Tribunal had gone beyond its Liability Judgment
at the remedy hearing this was unfair and improper.
48.
Ms Darwin argued that the Tribunal’s Reserved Written Reasons on remedy
in this case were a nullity. That was because, she said, the Tribunal had
handed down its Reasons already at the remedy hearing and before the parties
agreed on the quantum of damages that were payable to the Claimant.
Accordingly, the Tribunal had purported to provide its Oral Reasons in their
entirety and had not informed parties that Reasons were being reserved on some
issues to be given in writing later. The Reasons later sent were described as
“Reserved Reasons” rather than “Written Reasons” as is customary following an
oral Judgment.
49.
Reference was made to Rules 60 to 62 of the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2013 in relation to Decisions
and Reasons of such Tribunals. In particular Rule 61 provides that where there
is a hearing the Tribunal may either announce its Decision at the hearing or
reserve it to be sent to the parties as soon as reasonably practicable in
writing. The written record of any Decision announced at a hearing has to be
provided to parties. Rule 62(1) provides that the Tribunal must give Reasons
for its Decision on any disputed issues. Rule 62(2) provides that in the case
of a Decision given in writing the Reasons shall also be given in writing and
that where a decision is announced at a hearing the Reasons may be given either
orally at the hearing or reserved to be given in writing later. Ms Darwin
submitted that Rule 62(2) of the ET Rules is binary. The Tribunal is
not entitled to both announce its Reasons orally at the end of the hearing and
reserve them to be given in writing later, as the Tribunal in this case
purported to do. For that reason, the Reserved Written Reasons were a nullity
and were beyond what was permissible in the circumstances. Further, the
Tribunal had improperly used the Written Reasons to advance arguments in
defence of its own previous Liability Judgment.
50.
Counsel confirmed that paragraph 47 of the Remedy Judgment was correct
to the extent that what the Tribunal had done was announce its conclusions at
the end of the hearing. She acknowledged that the pillars of the decision had
been identified to allow parties to conduct the arithmetic but, as they had
been unable to agree, they submitted figures later. She argued that the
Tribunal had wrongly sought to supplement Reasons given on the day with far
more detailed Written Reasons later. As the Reserved Reasons differed significantly
from the conclusions given at the hearing, the Tribunal had supplemented its
oral Judgment to an unacceptable level. In summary, the Tribunal had acted
improperly in two respects: namely in seeking to “clarify” a Liability Judgment
in a Remedies Judgment which was described as a serious procedural irregularity,
and in giving Oral Reasons and purporting also to reserve Judgment.
51.
On the substance of the Tribunal’s assessment of the Claimant’s losses, it
was acknowledged that these overlap with some of the issues raised in the
liability appeal. In essence the Tribunal had erred in finding that there was
an unlimited amount of potential work for Recorders to do and had compensated
the Claimant on the basis that he would have been able to sit as a Recorder in
retirement whenever he wished to make himself available to undertake work. It
was on that basis that the total number of days that he would have sat in the
two years post retirement was calculated. In doing so the Tribunal had erred
in failing to take into account a number of highly relevant considerations
including:
(1) The Respondent’s own
assessment of the need for work to be done by the fee-paid and salaried judiciary
as determined by the sitting day allocations. Ms Brar’s evidence was that the
sitting allocation had reduced for the financial year 2016-17 with further
anticipated reductions in the following financial year.
(2) The ways in which the Respondent
allocates the pool of available work between different types of judicial
resources. Reference was made again to the “informal operating model” in terms
of which 80% of the allocation was met by Circuit Judges and only 20% by
Recorders. The Tribunal had erred in finding that the reduction in sitting day
allocation did not mean that the availability of fee-paid sitting days had
reduced in any event, sitting days had to be fairly distributed between all
Recorders particularly with a view to ensuring that they all have an
opportunity to undertake their guaranteed minimum sitting days. The position
of other Recorders is highly relevant to the number of days when the Claimant
was likely to sit and so the Tribunal had erred in finding it was meaningless,
the Respondent was entitled to give preference to Recorders under the
compulsory retirement age.
(3) The Respondent’s criteria
for extending appointments and assessment that there was no business need for
the extension of the Claimant’s appointment.
(4) The increased number of
salaried judicial resources that were available to the Respondent to undertake
a reduced amount of work. There was evidence of the number of new Circuit Judges
that were due to take up posts.
52.
In essence, the Tribunal had failed in concluding that the Claimant’s
willingness to sit was determinative of the days he would have worked without
balancing factors such as whether there was work to do, whether the Respondent
had apportioned funding for that particular work, whether the work might be
allocated to the Claimant rather than a Recorder who had not yet completed
their guaranteed minimum sitting days, and whether the work would be allocated
to the Claimant personally rather than other Recorders under compulsory
retirement age. Accordingly the Tribunal had erred in determining the issue
solely by reference to the narrow factor of the number of days the Claimant had
sat in the previous 19 months. Even if the Tribunal was entitled to rely
solely on the Claimant’s own previous sitting pattern and disregard all of the
considerations referred to, the Tribunal should have had regard to the
considerable fluctuation in the days that the Claimant had sat each year since 2005.
In relation to the proposed second year of extension, the Tribunal had failed
again to take into account relevant factors in considering whether there would
have been a business case for a further extension of the Claimant’s
appointment. It had erred further in relying on the fact that DCJ Wilkinson
and DCJ Eccles had undertaken work in determining the business need when the
evidence illustrated that a significant portion of that work related to serious
sex offences.
The Claimant’s Response to the Remedy Appeal
53.
In relation to the propriety or otherwise of the Tribunal “clarifying” its
decision on liability in a subsequent Remedy Judgment, Mr Crosfill pointed out
that the Tribunal explained in detail how it came about and that it was
necessary to reiterate or clarify what had been said in the Liability Judgment.
In essence, the misunderstanding had been on the part of counsel for the Respondent
and there had been no alteration in the Tribunal’s position. On the issue of
the difference between Reasons given on the day of the remedies hearing and in
the Written Judgment, counsel accepted that the Written Reasons were far more
detailed but submitted that all the Tribunal had done was to attempt to bring
matters to a conclusion on the day of the hearing by giving its Decision in
order to allow parties to do the arithmetic. There had been no departure from
the Rules as this had been a decision given following a hearing and followed up
with Written Reasons. Neither party had asked for Written Reasons because both
parties understood that Written Reasons would be provided later. There was
nothing in the Rules that prohibited the course taken by the Tribunal. In any
event, even if the Tribunal’s decision on the principal points in dispute on
the day of the hearing did amount to “reasons”, then the later provision of Written
Reasons superseded those Oral Reasons. Reference was made to Partners of
Haxby Practice v Collen UKEAT/0120/12/DM at paragraphs 14 to 17 in
support of that proposition. The Written Reasons were accordingly the preferable
statement of what had been decided and why. In any event, the Respondent had
not identified any prejudice by reason of the slightly unusual procedure that
had been followed. There was no material difference between the brief summary
of the decision given at the hearing and the Written Reasons that followed.
There had been no change of heart on the part of the Tribunal, no inconsistency
between the two. In the circumstances the Respondent was unable to establish
any error of law in this regard.
54.
In answering the arguments about the Tribunal’s assessment of
compensation in this case, Mr Crosfill submitted that the Claimant did not
accept that the past behaviour was somehow not a good guide to the future. The
Tribunal had recognised that the exercise of assessing loss involved a degree
of speculation about events that had not happened. All that the legislation
required was that the compensation should be such that is “just and
equitable”. The Respondent had not thought to argue before the Tribunal that
the Claimant, if his appointment was extended, would not have been treated the
same as other Recorders. There was no evidence before the Tribunal to that
effect. The issue was simply how often the Claimant would have sat if he had
carried on as before his retirement. Contrary to the Respondent’s submissions,
the Tribunal had expressly made findings about the fall in the sitting day allocation
(paragraphs 18 and 19) and then applied those findings to discount the likely
number of days for which the Claimant would have sat (paragraph 38). It had
been common ground between the parties that there had been a wide variance in
sitting opportunities but that pointed towards rather than against the need to
look at the most recent position.
55.
The Respondent had overstated matters in submitting that the Claimant’s willingness
to sit was found to be “determinative”. The Tribunal had made findings as to
the present state of judicial resources and to the decline in sitting day allocation.
It was entitled to take into account also the Claimant’s willingness to sit.
The Tribunal’s assessment of the available evidence was a proper one that could
not be faulted. The Tribunal had been correct to reject the suggestion that
the average sittings of all Recorders was the best guide as to how often the Claimant
would have sat if his appointment had been extended. The evidence was that had
an extension been given the Claimant would have been in the pool of Recorders
and treated the same as others. As he had established a pattern of sitting
much more than the average, the use of an average figure was indeed
meaningless. There was no reason for the Tribunal not to have regard to the
most recent sitting pattern of the Claimant rather than taking into account the
position in 2005. Its reasons for doing so had been properly explained.
56.
The arguments about a business case had been dealt with primarily in the
liability appeal. The fact that the sitting day allocation could be met by
heavy dependence on Recorders did not mean that a business case could not be
made out. In HHJ Wilkinson’s case there was no evidence that his work could
not have been met within existing resources. In all the circumstances the Remedy
Judgment was sound and should not be interfered with.
DISCUSSION
(I) Liability
57.
The first two grounds of appeal advanced by Ms Darwin relate to the
issue of procedural irregularity/unfairness. The contention is that in at
least two different ways the Tribunal acted in an irregular manner that was
serious enough to give rise to unfairness to the Respondent such that the
decision cannot stand. There was no dispute between counsel as to the applicable
law in this area. The approach must be to ascertain first whether there was
any irregularity and if so, to examine whether unfairness has resulted. All of
that must be done in the context of the evidence before the Tribunal as a whole
and tested against what the issues in the case were. The thrust of both of the
first two grounds of appeal is that the Tribunal did not address matters along
strictly adversarial lines, that it decided the manner on a basis not put
forward by the Claimant and that it made adverse findings against the Respondent
that had no foundation in the evidence in circumstances in which the relevant
matters had not been raised or raised properly with the Respondent’s witnesses during
the course of the hearing. The authorities on various types of procedural irregularities
and the unfairness that can be created were analysed by HHJ Hand QC in NHS
Trust Development Authority v Saiger & Others UKEAT/0167/15/LA.
The context in that case was the failure to put a material fact to a witness.
HHJ Hand QC concluded that:
“102. … The extent to which there has been procedural
unfairness is not necessarily a matter of simply scrutinising what actually was
put. It will involve a consideration of all of the evidence, how the matter stood
at the end of all of the evidence and what the parties and the Tribunal should
have recognised from that material was still in issue in the case. I do not
accept that every failure to put every particular aspect of a case amounts to a
serious procedural failure. The context may suggest that looked at overall it
was perfectly fair, everybody knew where they were heading, what was at issue,
what the case being put forward was and what the answer to it should be.”
58.
Turning first to the issue of whether the Tribunal determined the Claimant’s
case in his favour on grounds other than those relied on by him, it seems to me
that all that occurred was that the Tribunal resolved an argument about the
terms and conditions upon which the Claimant could have had his term of office
extended by accepting the position contended for by the Respondent. The Claimant
had not conceded that he could continue to work only as a Recorder and had
suggested that he could be offered the same terms and conditions as a Deputy
Circuit Judge. As the Respondent had drawn attention to the fact that section 26(5)
JUPRA does not permit a Recorder to change office upon his compulsory
retirement but only to remain or continue in that office, the Tribunal was in
my view correct to accept the Respondent’s argument. There was no question of
the Tribunal deciding the matter on a basis that was not before it in evidence
or in argument on this particular point. The Respondent had clearly made the
argument about the inability to change office - see paragraph 6 of the Liability
Judgment. Accordingly, no unfairness to the Respondent was created as this was
simply one aspect of the case in which the argument put forward by one side was
preferred over the other.
59.
Further, I am of the view that it does not follow from the Tribunal’s
acceptance of that position that any question of the incompatibility of section
26(5) of JUPRA with the Part-time Workers Directive (Council
Directive 97/81/EC) arose in a way that required determination by the
Tribunal. The Respondent contends that, as Recorders such as the Claimant were
guaranteed a certain number of days minimum sitting (15 for the Claimant but 30
for other, more recently appointed Recorders) as opposed to Deputy Circuit
Judges who work on effectively a “zero hours contract” basis, the legislation
effectively treats part-time workers more favourably than full-time workers.
In the event, the Tribunal did not require to address that issue because on the
evidence before it there was ample work for a Recorder keen to sit for at least
15 days and there was also sufficient work such that a Deputy Circuit Judge
would sit more than that. Accordingly, on the facts of this particular case,
the Respondent would have been able to treat both the Claimant and his
full-time comparator equally and no question of treating the part-time worker
more favourably than the full-time comparator would arise. It is clear from
paragraph 69 of the Liability Judgment that the Tribunal decided the matter on
that basis. In any event, the guaranteed minimum sitting days is a matter of
contract between the Respondent and Recorders and does not emanate from any
statute governing their appointment.
60.
The central issue in this case was whether the Claimant, as a part-time
worker engaged in similar work to his full-time named comparator, had been
treated less favourably without objective justification when he was not
permitted to work on after his compulsory retirement age. That central issue
was adequately canvassed in evidence and in oral submissions before the
Tribunal, and detailed Reasons for rejecting the Respondent’s submission that
the Claimant was a significantly different judicial resource from HHJ Wilkinson
were given. The Tribunal put aside general discriminatory assumptions made by
the Respondent in respect of part-timers (that they were less flexible and
available) and so I reject the intention that the Tribunal did not have regard
to the Respondent’s argument in that respect. Accordingly, I reject both bases
relied on by the Respondent in support of the first ground of appeal.
61.
Turning to the second ground of appeal, this relates to matters which
the Respondent claims had not been raised to any material extent at the hearing
and of which the Tribunal appears to make adverse findings. In Neale v
Hereford and Worcester County Council [1986] ICR 471 the Court of
Appeal emphasised that it would be unwise and potentially unfair for a Tribunal
to rely upon matters which occur to its members after the hearing that have not
been mentioned or treated as relevant, without a party against whom the point
is raised being given the opportunity to deal with it unless no useful comment
in explanation could be anticipated. The Court went on (at page 486) as
follows:
“… Further, if a point has not been mentioned, or if little
or no weight has been attached to it, the tribunal is entitled to and should
have regard to the point according to their own assessment of it but, in
forming that assessment, the … tribunal should … pay careful and proper
attention to the course of the hearing and the way in which and the extent to
which a point has been made or relied upon. …”
62.
The Respondent’s written submissions refer to a total of 16 adverse
findings complained about. However it was accepted by Ms Darwin that many of
these were relatively insubstantial or involved a degree of overlap.
63.
On the main arguments presented, there is first the question of whether
the Tribunal impliedly found (at paragraph 24) that the Respondent’s main
witness, Ms Brar, was untruthful or somehow dishonest. The stated concern was
said to be that there was no particular attack on Ms Brar’s credibility in
evidence and that it was not raised at the submission stage. It was accepted
by Mr Crosfill on the authority of Doherty v British Midland Airways Ltd
[2006] IRLR 90 that such an adverse finding on credibility and reliability
would be a misdirection if not put to the witness or advanced in argument.
However, in my view paragraph 24 of the Liability Judgment makes no such attack
on Ms Brar’s credibility and reliability. That paragraph makes clear that the
only attack that required to be noted by the Tribunal was one made by Ms Darwin
on the Claimant. The Tribunal had to deal with that and rejected the
criticisms she had made. The Tribunal went on to earmark both the Claimant and
one of the Respondent’s witnesses as being particularly impressive in terms of
their honesty and integrity. The specific mention of those two witnesses and
the absence of any mention of another witness cannot be taken as the Tribunal
impugning the credibility of the unmentioned witness, Ms Brar. Reading the
Tribunal’s Judgment as a whole, it is clear that where the Tribunal does not
accept some of the evidence of Ms Brar it is on the basis she and the Respondent
may have based some of their views on general assumptions about full-time Judges
and part-time Judges that the Tribunal did not accept as a relevant
consideration. That does not in any way go to credibility. A witness may be found
to be wrong or mistaken or have approached a point from an incorrect angle, but
that is not tantamount in any way to a finding of dishonesty. In short, there
simply is no adverse finding of the type Ms Darwin claimed had been identified
and so the Tribunal cannot be said to have erred in this respect.
64.
Taking together the adverse findings made in relation to whether the Respondent
provided an appropriate template to Recorders seeking extension and the role of
Ms Brar on the one hand and the Lord Chief Justice or Lord Chancellor on the
other in respect of the decision making process, these all raise the question
of whether the Tribunal erred by making important findings on matters on which
there was either insufficient evidence or no evidence at all. It seems to me
that these findings go to the fairness or otherwise of the process for applying
for further work as between a full-time Circuit Judge and a part-time
Recorder. The argument was presented by Ms Darwin on the basis that the
Tribunal was wrong to find that the template Annex B did not apply to
Recorders. In fact, a fair reading of paragraph 40 of the Tribunal’s Judgment
illustrates that the Tribunal did not find that there was no template at all
that a Recorder could use but rather that neither template A nor B was on the
face of it were suitable for applications for the extension of a fee-paid
appointment such as a Recorder. The Tribunal considered that there was
confusion between the Respondent’s stated position that one of the templates
would be appropriate for the Claimant and what the administrative staff were
informed by the relative guidance. It was never suggested that there was no mechanism
through which the Claimant could apply for an extension as he did so apply.
The Tribunal’s conclusion was that the templates were clearly designed to fit
those who had been Circuit Judges rather than part-time workers such as
Recorders. In any event, even if the Tribunal’s conclusion on this point could
be regarded as slightly overstated, the overall conclusion was influenced only
to a very small extent by the absence of reference in the administrative
guidance to the possibility of applications for reappointment by Recorders and
the lack of a suitable template - see paragraph 84. Any error was accordingly
not a material one such as would justify interference with the overall
decision.
65.
On the question of who made the decisions in relation to extension of fee-paid
workers or redeployment of full-time workers, I consider that the Tribunal was
entitled to make a finding that whether or not a business case can be made out
is Ms Brar’s decision (paragraph 43). As Mr Crosfill pointed out, the decision
about whether or not there was a business case to put forward in relation to an
applicant did lie solely with Ms Brar. If no business case could be made out,
then no appointment could be made. Accordingly Ms Brar played a very
significant role in the decision making process. Further, in the absence of
any evidence that the Lord Chief Justice or Lord Chancellor played an active role
in relation to the decision making process, the Tribunal was correct to regard
those high judicial office holders as making the final decision only
“technically” (paragraph 44). The Tribunal noted that there was no evidence
that those office holders ever disagreed or refused to appoint if a business
case had been put forward. It seems to me that the Tribunal well understood
that, rather like the situation where a Judicial Appointments Commission or Board
puts forward recommendations for judicial appointment but the power to make
that appointment is ultimately said to be by Ministers or the Crown, the real
power to determine the pool of candidates put forward for appointment and so appointed
in consequence of those recommendations, does not lie with the ultimate named decision
maker. So it was in this case that Ms Brar held the power to propose or refuse
to propose a business case for the Claimant and/or his comparator. I reject
the contention that the Tribunal erred in making any of these three findings
and/or that any unfairness resulted from them.
66.
The final matter identified as one for which there was said to be no
evidence was the Tribunal’s finding that there was scant evidence or at least a
lack of clear evidence that the Respondent needed Judges with an SSO ticket to
sit or particular pressure on covering SSO work. In my view, it is important
to look at the context of what the Tribunal was addressing in paragraph 79.
The Respondent had sought to advance an argument that the SSO ticket was
effectively a pre-requisite of continued work for the Judge in the Crown Court
post-retirement age. The Tribunal rejected that contention and gives reasons
for doing so. One reason was the lack of any direct evidence to support it.
The Tribunal did not suggest there was no material at all in relation to the
difficulty in covering SSO cases simply that it was “scant”. The passage of
evidence referred to by Ms Darwin is consistent with that finding. The
Tribunal’s concern was clearly that in the absence of statistical evidence or
other relevant material there was an insufficient basis for the Tribunal to
conclude that the Respondent had established a particular need for someone with
an SSO ticket. It had not been disputed that having an SSO ticket was of some
value, but the evidence appeared to fall far short of forming a basis for a
conclusion that it was a pre-requisite.
67.
While the Respondent challenged certain other findings made by the
Tribunal, it was accepted that these were not significant on their own or at
least were covered by issues raised in the other grounds of appeal. For
example, criticism was made of paragraph 63 where the Tribunal states that “Circuit
Judges are appointed from the ranks of Recorders” when Ms Brar’s evidence
had been to the effect that they were mostly appointed from the ranks of Recorders
but did not go so far as stating that they were exclusively so appointed.
While this finding is of interest as part of the general background, nothing turned
on it. In any event this issue, like all of the other matters challenged in
the second ground of appeal, was fully ventilated in evidence and the Tribunal
made findings. As the second ground of appeal is directed at procedural
unfairness, the Respondent would be required to show both that it was correct
that some of these issues had not been raised with the Respondent or the Respondent’s
witnesses during the course of the hearing and that unfairness had resulted.
68.
Having considered submissions and the material relied on in this chapter
of the appeal, I am satisfied that, other than on insignificant details such as
whether Circuit Judges are mostly or exclusively taken from the ranks of
Recorders, the Tribunal cannot be said to have erred at all. On the single
matter of the relevant templates, there may be an error in the way in which it
was expressed, but the substance of the decision (that the templates were
directed at full-time salaried judiciary) was sound. On each and every issue
identified, there was a basis in the evidence for the Tribunal’s finding.
Adequate reasons were given for each and the Respondent cannot now complain
that the Tribunal did not find in its favour on issues (such as the
pre-requisite of an SSO ticket) on which insufficient evidence was led for the
Tribunal to make a finding favourable to the Respondent.
69.
Turning to the fourth ground of appeal and issues of flexibility and
availability, the Respondent had contended that the Claimant and his full-time
comparator, HHJ Wilkinson, were in materially different positions. The
Tribunal had before it evidence that HHJ Wilkinson, having just retired from a
full-time role as a Circuit Judge and having chosen to apply to be a Deputy
Circuit Judge, had good availability to sit. However, the Tribunal had
evidence from the Claimant, challenged in cross-examination, on the issue of
his own position. Accordingly, there was clear evidence, for the Tribunal to
accept or reject, that the Claimant was also available and flexible for the
reasons he gave. All the Respondent could then rely on was a general
assumption that any Recorders, because they combine judicial sittings with their
main career as a Barrister or a Solicitor, are less likely to be available at
short notice or for lengthy cases than Deputy Circuit Judges who have retired.
This general assumption, quite apart from being discriminatory against
part-time workers, was of no assistance to the Tribunal given that it had
before it direct evidence of the particular availability and flexibility of the
two individuals being compared. Evidence that there are some Recorders who are
unable or reluctant to sit even for the guaranteed minimum sitting days
illustrated only that the Claimant could not be treated on the basis of any
general assumption. I have already commented on the Respondent’s further
argument in relation to Deputy Circuit Judges being used only as a last resort
judicial resource. The clear evidence before the Tribunal was that there was
ample work for both Deputy Circuit Judges and Recorders. I consider that the
Tribunal was entitled to conclude (at paragraph 81) that the assumption that
the Claimant would be less willing to sit could not be made legitimately on the
evidence. In any event, as the Tribunal also noted, this type of availability
was not a reason given to the Claimant or mentioned at the relevant meeting in
relation to the applications.
70.
The fifth and seventh grounds of appeal centred on the question of the Respondent’s
objective justification defence. In essence the Respondent contended that, as
the Tribunal was obliged to have regard to the reasonable needs of the Respondent
and as those reasonable needs included the sitting day allocation, the Tribunal
had been wrong to attach no weight to the evidence about the criminal sitting
day allocation and had erred in substituting its own view of the Respondent’s
needs and policy priorities. In my view, attacks such as those made under
these grounds of appeal fail to acknowledge the careful analysis given by the
Tribunal at paragraph 88 of the Judgment. Six enumerated reasons are given for
the conclusion that the Respondent had failed to prove that it was reasonably
necessary to require the Claimant to hold an SSO ticket or that there was any
other reasonable necessity for not making a business case for him. The sitting
day allocation issue is dealt with as the sixth numbered reason. The problem
for the Respondent was that the accepted case in relation to the extension of
HHJ Wilkinson’s tenure was that there was a shortage of judicial resources and
a consequent increased reliance on Recorders. There was sufficient material
for the Tribunal to reject any argument that there was a sufficient judicial
complement to use the region sitting day allocation. The refusal to allow a
number of salaried criminal Circuit Judges to reduce their sittings illustrated
that there was a shortage of Circuit Judges. There was evidence of a reduced
pool of Recorders and a backlog of cases in the Crown Court and those had all
been factors in refusing the applications of salaried Judges to work less than
full-time. All of these militated against the idea that there was objective
justification for refusing to appoint the Claimant to sit beyond retirement
age. There was no suggestion at the appeal hearing that the Tribunal had been
wrong to record (at paragraph 28) that in the South East the number of days
actually sat exceeded the sitting day allocation in each year. Absent a
challenge to that finding, it is easy to see why the Tribunal went onto
conclude that the region needed more rather than fewer judicial resources. I
reject the contention that any of the passages relied on for these grounds is
illustrative of an error of law, far less perversity.
71.
This was a difficult case for the Tribunal and it seems to me that all
of the issues on liability have been addressed as comprehensively as possible
standing the evidence led. The Respondent having led no statistical or other
evidence illustrative of a requirement only for Judges who held SSO tickets, the
Tribunal was left with evidence that the Respondent had given reasons to the
full-time comparator for the extension of his appointment that would also have
provided justification for the extension of the Claimant’s tenure as a
Recorder. Further, it is important to continue to bear in mind that the
comparison being made was between a full-time Circuit Judge and a part-time
Recorder and not between a (part-time) Deputy Circuit Judge and a Recorder.
The substance of the decision that the Respondent required to make was whether
there was a sufficient business need for fee-paid judiciary. If there was such
a need, two workers that were able and willing to assist in meeting it were the
Claimant (a part-time worker at the material time) and HHJ Wilkinson (a
comparable full-time worker at the material time). There was ample evidence on
which the Tribunal was entitled to conclude that there was a need for fee-paid
judiciary in the relevant region with experience of criminal case work.
Notwithstanding that business need, the Respondent treated the Claimant’s
application to sit on less favourably than that of his full-time comparator
without objective justification. Many of the points taken at appeal appear to
relate more to disappointment that the Respondent’s arguments had not found
favour with the Tribunal than being illustrative of any substantive legal
dispute. The case for both sides was fully aired and examined and neither the
Tribunal’s approach nor its conclusions are illustrative of error or
unfairness.
72.
Accordingly I do not consider that any of the Respondent’s arguments in
relation to the liability appeal identify any errors that would justify
interference with the Decision overall.
73.
However, I consider it appropriate to make brief mention of the issue
about the correct interpretation of the phrase “the treatment is on the ground
that the worker is a part-time worker” within Regulation 5(2)(a) of the 2000
Regulations. The approach of the Tribunal was to follow the approach in Carl
v University of Sheffield [2009] IRLR 616 so that the interpretation is
consistent with the same phrase in other domestic legislation. This required,
in the present context, part-time work to be the effective and predominant
cause of the less favourable treatment but it need not be the only cause - O’Neill
v St Thomas More School [1996] IRLR 372. The Respondent agrees that
the form of words used at paragraph 85 of the Tribunal’s conclusion, namely
that the fact that the Claimant was a part-time worker was a “significant,
material, effective ground” for the difference in treatment is consistent
with that approach. As already indicated, Ms Darwin had wrongly assumed that
the Claimant had cross-appealed in relation to the interpretation of the test,
but he had not. The Respondent, had the Claimant cross-appealed, would have
sought to advance an argument that following the cases of McMenemy v
Capita Business Services Ltd [2007] IRLR 400 and Engel v Ministry
of Justice [2017] ICR 277, Regulation 5(2)(a) should be interpreted
more narrowly such that a part-time worker such as the Claimant must establish
that the employer has treated him less favourably on the sole ground that he is
a part-time worker. As there is no cross-appeal before me, it is unnecessary
to express a view on this point in the present litigation, but I note that
there remains a direct conflict between the approach in Carl v University
of Sheffield and the cases of McMenemy and Engel.
The Claimant’s argument that the correct approach was to interpret the phrase
“on the ground that” in the same way as it had been for protected disclosure
cases - Fecitt v NHS Manchester (Public Concern at Work intervening)
[2012] ICR 372 - was not pursued by him on appeal.
(II) Remedy
74.
It is appropriate first to address Ms Darwin’s argument that it was
unfair and improper of the Tribunal to use the remedy hearing to amend its Liability
Judgment. The Respondent contends that this was not a mere “clarification of
the Liability Judgment” but was an attempt to elaborate on or give further Reasons
for the Decision on liability. It is somewhat unorthodox for an Employment
Tribunal to seek to clarify an earlier Liability Judgment in giving Reasons on
remedy. However, paragraphs 2 to 4 of the Remedy Judgment set out the
circumstances in which this unusual course was taken. It arose only because
counsel for the Respondent appeared to have misunderstood the Liability Judgment
on the issue of the basis on which the Claimant would have been reappointed but
for the discrimination. She had attempted to cross-examine the Claimant on the
basis that the decision was that he would have been reappointed effectively on
a zero hours contract with no guaranteed number of sitting days. That approach
flew in the face of what the Tribunal had stated at paragraphs 6 and 68 of the Liability
Judgment. The Claimant had initially suggested that he might be taken on with
the same terms and conditions as a Deputy Circuit Judge but the Tribunal, as
already explained in the liability section of this Judgment, had accepted the Respondent’s
argument that he could only be given work as a Recorder because section 26(5)
does not allow a Recorder to change office upon compulsory retirement only to
remain or continue in his current office. It was common ground that for the Claimant
that meant a guaranteed minimum of 15 days sitting per year. I consider that
the Tribunal’s Liability Judgment is unequivocal and succinct in the way it
dealt with this matter. In light of all the evidence the Tribunal had heard,
no issue arose or could arise about the Claimant being treated more favourably
than his full-time comparator because the evidence illustrated that there was
ample work for both.
75.
There is absolutely nothing in the Liability Judgment that could justify
the misunderstanding that appears to have arisen. Accordingly, I consider that
there was no need for the Tribunal to clarify matters the way that it did in
the Remedy Judgment. The passages in paragraphs 2 to 4 of that Judgment are
primarily a narration of a set of circumstances that arose at the remedy
hearing and how those circumstances were dealt with by the Tribunal.
Ultimately they had no bearing on the issue of compensation as the basis on
which the Claimant’s office would have been extended had already been decided.
No unfairness resulted from the Tribunal seeking to set out what had occurred
and why it regarded counsel’s reading of the Liability Judgment as wrong.
76.
The second alleged procedural irregularity arising from the Remedy Judgment
is the way in which the Tribunal gave its Reasons. Counsel agreed that what
had occurred was that the Tribunal had given its conclusions only at the remedy
hearing after what was described as a “long and combative day”. This allowed
parties to agree the arithmetic on damages. The Tribunal then produced a Written
Judgment with Reasons attached. The issue for determination on this ground is
whether Rule 62(2) of the Employment Tribunal Rules 2013 is binary such
that Reasons must be given either orally at the hearing or reserved to be given
in writing later. The Respondent’s position is that the Tribunal in this case
sought to follow both routes such that the reserved Written Reasons are a
nullity. Rule 62(2) of the 2013 Rules is in the following terms:
“(2) In the case of a decision given in writing the reasons
shall also be given in writing. In the case of a decision announced at a
hearing the reasons may be given orally at the hearing or reserved to be given
in writing later (which may, but need not, be as part of the written record of
the decision). Written reasons shall be signed by the Employment Judge.”
77.
While counsel who appeared both before the Tribunal and on appeal
appeared unable to agree whether it was understood following the remedy hearing
that Written Reasons would be provided later, I have decided that it is
sufficient for disposal of this point that there is nothing in the terms of
Rule 62(2) which would preclude a Tribunal announcing its conclusions orally at
the end of a hearing and providing a Written Judgment containing its Reasons later.
More importantly, even if the Tribunal is regarded as having given first Oral Reasons
and then later Written Reasons in slightly different terms to those Oral Reasons,
it is the later Written Reasons that prevail and not the earlier oral
statement. While the context was slightly different, in the case of Partners
of Haxby Practice v Collen UKEAT/0120/12/DM Underhill J expressed the
following view:
“15. It will be apparent from what I have already said that I
agree that the Judge’s reasoning did differ as between the oral reasons, at
least as recorded by Ms Alistari, and the written Reasons. But I do not accept
that this is a ground for allowing the appeal. The short point is that if, as
I have held, the Judge’s conclusion was unquestionably right it should be
upheld whatever the errors in either set of reasons. But the point is one
which I have seen raised in other appeals, and it may be useful if I make clear
my view that a divergence between a tribunal’s oral and written reasons would
never, without more, give rise to a valid ground of appeal. I set out below
what I consider to be the status of oral reasons in circumstances where written
Reasons are subsequently requested and supplied.
16. I accept that normally any written Reasons supplied
pursuant to r 3(3) will closely correspond to the oral reasons given at the
conclusion of the hearing. The usual practice is that the oral reasons are
recorded on tape and that if a request for written Reasons is made a transcript
will be provided to the Judge and will constitute, in effect, the first draft
of the written Reasons. There will almost always, however, be some degree of
editing. Often that will involve no more than “topping and tailing” and/or
correcting infelicities of language or expression. But the editing process
may, depending on the circumstances of the case and no doubt on the temperament
of the Judge, be more substantial. Even then, the essential reasoning would
normally be retained. But every now and then there will be cases where the
process of revision is so extensive that, whether the Judge appreciates it or
not, the reasoning expressed in support of the conclusion differs in substance
from the oral reasoning: sometimes the difference may be patent, but sometimes
the difference may only be apparent on a careful analysis. There is no shame
in this. Giving oral reasons is in principle a healthy practice, which is
economical of resources (including the invaluable resource of time) and helpful
to the parties; but the Judge will necessary have less time to prepare what is
said than if reasons are reserved, and it is unsurprising that the process of
producing written Reasons will occasionally modify his or her detailed
thinking.
17. I do not believe that such a departure from the initially
expressed reasoning involves any error of law. The scheme of the Rules seems
to me to be that where written Reasons are supplied they constitute the sole authoritative
statement of the tribunal’s reasons and the oral reasons are superseded. It
would be unfortunate if the tribunal were irrevocably committed to its first
thoughts as to the route by which the result is most appropriately reached; and
I can see no reason in law why that should be so. What ultimately matters is
not to have an accurate reflection of the processes by which, as a matter of
history, the tribunal reached its conclusion but that in the definitive reasons
provided for by the Rules the parties and others (including this tribunal)
should have the benefit of its most considered justification for the decision
which it has reached. …”
78.
In the present case, no significant material difference between the
conclusions given orally and the Written Judgment was actually identified on
appeal. It seems to me that the rationale of the Partners of Haxby
Practice case applies equally to a situation where, for an easily
understood pragmatic purpose, the Tribunal had stated its conclusions with brief
Reasons at the hearing while otherwise reserving Judgment. But for the
approach taken by the Tribunal in this case, it would have been the Tribunal
rather than parties that would have been required to embark upon the
arithmetical exercise following the decision in principle. I conclude that the
Tribunal’s approach is not illustrative of any error of law or impropriety and
that the Remedy Judgment issued is a valid one.
79.
Turning to the substantive issue raised in the remedy appeal, the
Tribunal was said to have erred in finding that there was essentially an
unlimited amount of potential work for Recorders to do and that the Claimant
would have been able to sit as a Recorder in retirement whenever he wished to
make himself available. Considerable reliance was placed on the issue of sitting
day allocation and the evidence that it had reduced for the financial year
2016-17 with further anticipated reductions and also the evidence about how the
pool of available work was split between different types of judicial resources
and the increased number of salaried judicial resources. In assessing losses
attributable to an infringement of Regulation 5 of the 2000 Regulations,
Regulation 8(9) thereof provides:
“(9) Where a tribunal orders compensation under paragraph (7)(b),
the amount of the compensation awarded shall be such as the tribunal considers
just and equitable in all the circumstances … having regard to -
(a) the infringement to which the
complaint relates, and
(b) any loss which is attributable
to the infringement having regard, in the case of an infringement of the right
conferred by regulation 5, to the pro rata principle except where it is
inappropriate to do so.”
80.
It seems to me that in determining what compensation would be just and
equitable, the Tribunal had to address how often, on balance of probabilities,
the Claimant would have sat if he had carried on working as a Recorder after
compulsory retirement age. I reject the contention that the Tribunal went
beyond a calculation of those losses attributable to the infringement of
Regulation 5 by using the Claimant’s work as a Recorder as a guide. The
available evidence illustrated that the “zero hours contract” under which the Claimant’s
comparator required to operate had no relevant consequences given the
availability of work. As the Claimant held only the office of Recorder, his
loss had to be assessed on the basis that he would have sat in that role. What
matters is that it is his loss of earnings, insofar as attributable to the
discriminatory treatment, which was relevant. In the absence of evidence
supporting a conclusion that there would not have been sufficient work for him
to continue to sit, the Tribunal was entitled to assess compensation on the
basis that, but for the infringement of Regulation 5 he would have continued to
earn broadly at the level he had prior to reaching compulsory retirement age. The
material used by the Tribunal to determine the issue was the evidence of the Claimant’s
earnings prior to age 70 together with his evidence about what he understood
the demand had been for Recorders sittings during 2015 and 2016. As the
Tribunal notes at paragraph 17 of the Remedy Judgment, his evidence about the
high volume of emails offering last minute sittings to Recorders was
unchallenged and the Tribunal was entitled to accept what he said about the
shortage of Recorders across the whole of the South East circuit. While Ms Brar
for the Respondent had given evidence about new Circuit Judge appointments, she
accepted in cross-examination that the Respondent has less than its full complement
of Circuit Judges in the relevant regions. Against that background, while the
evidence about the sitting day allocation was relevant material, there was
sufficient other evidence to justify the conclusion that the availability of
fee-paid sitting days had not reduced. Further, the Respondent’s requirement
to effect some sort of fair distribution of sitting days between all Recorders,
that obligation would only affect the Claimant’s loss if it was shown that the
consequence would have been that fewer sitting days were offered to someone in
the Claimant’s position. There was no evidence to that effect.
81.
Contrary to the submission made by Ms Darwin, the Tribunal did not actually
determine the issue of compensation solely by reference to the number of days
that the Claimant had sat in the preceding 19 months. A deduction was made to
factor in the evidence of a 2% decline in sitting days (see paragraph 38 of the
Remedy Judgment). In my view the Tribunal was entitled to regard the more
recent sitting pattern of the Claimant as a Recorder as a better guide to his
loss than historic figures from 2005. So far as the issue of how much he would
have sat in the second year of extension is concerned, the Tribunal’s
conclusion at paragraph 39 is one that it was entitled to reach on the
available evidence. In the years leading up to his attaining compulsory
retirement age, the Claimant had tended to sit as a Recorder far more often
than the average. The reasons for that were explored in evidence and
understood by the Tribunal.
82.
I reject also the contention that the Tribunal failed to take material
considerations into account in assessing compensation in this case. Having
been impressed by the Claimant’s honesty, the Tribunal was entitled to rely on
the hearsay evidence he gave from colleagues as to the ongoing high level of
demand for Recorders. Finally, I do not consider it to be an error for the
Tribunal to have relied on the amount of work undertaken by DCJ Wilkinson and
DCJ Eccles regardless of the type of such work. That evidence served to
support the conclusion that, but for the unlawful discrimination against him as
a part-time worker, the Claimant could have continued sitting much as he had
done in the years prior to 2016. Again the Tribunal’s approach on the
substance of the Remedy Judgment is not illustrative of any error in law or in
approach.
DECISION
83.
For the reasons given the appeals against both liability and remedy fail
and will be dismissed.
