Thompson v Ministry of Justice & Ors (Part Time Workers) [2016] UKEAT 0004_15

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

Introduction

1. These appeals concern the impact of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the 2000 Regulations”) on monetary claims and claims for pensions brought by people who have served as part-time Judges. The Court of Appeal has recently decided (in Ministry of Justice v O’Brien [2015] EWCA Civ 1368) when time runs for bringing such a claim in the Employment Tribunal (“the ET”). These appeals are against decisions of the ET to refuse to extend the time for making such claims. The ET adopted an approach to the start of the limitation period which was upheld by the Court of Appeal. In both cases, the ET consisted of an Employment Judge sitting alone, Judge Macmillan (“the EJ”). In both cases, the EJ was sitting at London Central.

2. I will refer to the parties as they were below. To distinguish between the two appeals, I will refer to Mr Thompson (who is the Appellant in the second appeal) as “Claimant 2”. The Claimants were represented by Mr Allen QC and Ms Crasnow QC, and the Respondent by Mr Cavanagh QC, Mr Bourne QC and Ms Kamm. Claimant 2 was represented by Mr Sugarman. I am grateful to all counsel for their written and oral submissions.

3. In the first appeal, Miller, the Decision of the ET was sent to parties on 2 January 2014. The EJ decided that time began to run, in respect of both a claim about denial of access to pension scheme, and a monetary claim, from the date when each part-time appointment ended; and that reliance on the Respondent’s Moratorium was the only generic factor which made it just and equitable to extend time. He extended time in two cases, Robins and Miller, because of factors peculiar to their cases.

4. In Miller, permission to appeal was refused by the former President, Langstaff J, on the paper sift. He granted permission after a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules of Procedure (“the Rules”). There was some debate about the scope of the grant of permission, but Mr Cavanagh did not suggest that it was not open to the Claimants to argue all their grounds, and they did so.

5. Langstaff J’s reasons for granting permission to appeal on the Rule 3(10) Hearing led to a Burns/Barke application by the Respondent in relation the appeal of Mr Gibb and others, Appellants in this appeal who were represented by different solicitors from the Miller Appellants. The EJ’s answers to the questions posed in that application disposed of any argument that the EJ had failed to deal with the issue in Mr Gibb’s appeal. I do not need to refer to that answer in any detail, but the EJ made three relevant points.

(a) He did consider each claim individually before dismissing it.

(b) He did consider the cumulative weight of the generic factors as well as each in isolation where a Claimant was relying on more than one such factor, but he did not do so if a Claimant did not say that he was relying on such a factor.

(c) In the case of Mr Gibb he did consider and reject the particular argument on which he relied (that is, that he did not believe that it was necessary to bring a claim because he expected to accrue maximum pensionable service before he retired).

He expanded on his reasons, by saying that, on this issue, he had largely accepted the points made by Mr Cavanagh in his skeleton argument. In short, the claim that it was just and equitable to extend time because of a new contingency “did not work”. After the Burns/Barke response, the Gibb Appellants withdrew their appeals.

6. The Decision from which Claimant 2 appeals was sent to the parties on 13 March 2014. Permission to appeal was again refused by Langstaff J on the paper sift, but he granted it after a hearing under Rule 3(10) of the Rules.

The Law

7. Regulation 5 of the 2000 Regulations provides:

“5. Less favourable treatment of part-time workers

(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) by 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.

(4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.”

8. So far as is relevant, Regulation 8 provides:

“8. Complaints to employment tribunals etc

(1) Subject to regulation 7(5), a worker may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation 5 or 7(2).

(2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months … beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.

(3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

9. The test for extending time in discrimination claims is different from the test which applies in unfair dismissal claims. In unfair dismissal cases, the question is whether it was “reasonably practicable” for the claim to have been brought sooner than it was in fact brought. There have been many decisions of the Employment Appeal Tribunal (“the EAT”) and of the Court of Appeal on the just and equitable test. They are well known, and it is not necessary for me to say very much about them.

10. There are five points which are relevant to the issues in these appeals.

i. The discretion to extend time is a wide one: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434, paragraphs 23 and 24.

ii. Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule (ibid, paragraph 25). In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327 Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it. It follows that I reject Mr Allen’s submission that, in Caston, the Court of Appeal “corrected” paragraph 25 of Robertson. Be that as it may, the EJ in any event directed himself, in the first appeal, in accordance with Sedley LJ’s gloss (at paragraph 31 of Caston), which is more favourable to the Claimants than the gloss by the majority.

iii. If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, “perverse”, that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence. No authority is needed for that proposition.

iv. What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET (DCA v Jones [2007] EWCA Civ 894; [2007] IRLR 128). The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is “customarily” relevant in such cases (ibid, paragraph 44).

v. The ET may find the checklist of factors in section 33 of the Limitation Act 1980 (“the 1980 Act”) helpful (British Coal Corporation v Keeble [1997] IRLR 336 EAT; the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smith J (as she then was) recorded, at paragraph 8 of her Judgment, that nobody had suggested that this was wrong. This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Southwark London Borough Council [2003] ICR 800; [2003] EWCA Civ 15, at paragraph 33.

11. DCA v Jones was an unsuccessful appeal against a decision by an ET to extend time in a disability discrimination claim. The Claimant had not made such a claim during the limitation period as he did not want to admit to himself that he had a disability. At paragraph 50, Pill LJ said this:

“The guidelines expressed in Keeble are a valuable reminder of factors which may be taken into account. Their relevance depends on the facts of the particular case. The factors which have to be taken into account depend on the facts and the self-directions which need to be given must be tailored to the facts of the case as found. It is inconceivable in my judgment that when he used the word “pertinent” the Chairman, who had reasoned the whole issue very carefully, was saying that the state of mind of the respondent and the reason for the delay was not a relevant factor in the situation.”

12. I should also say a little more about points 10(iii)-(v). There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses. As I understood their arguments, neither Mr Allen nor Mr Sugarman suggested that a lack of forensic prejudice to a Respondent was a decisive factor, by itself, in favour of an extension of time. But both argued, in slightly different ways, that the ET was bound in every case, in Mr Allen’s phrase, “to balance off” the relative prejudice to the parties, and that, if the ET did not do so expressly, that was an error of law, even if there was, otherwise, no good reason to extend time.

13. It seems to me that it is not necessary for me to deal with that bald submission, because, as I explain below, the EJ did, to the extent that he was required to, take into account prejudice to both sides. But if I had needed to, I would have rejected that submission. It is clear from paragraph 50 of Pill LJ’s judgment in DCA v Jones that it is for the ET to decide, on the facts of any particular case, which potentially relevant factor or factors is or are actually relevant to the exercise of its discretion in any case. DCA v Jones also makes clear (at paragraph 44) that the prejudice to a Respondent of losing a limitation defence is “customarily relevant” to the exercise of this discretion. It is obvious that if there is forensic prejudice to a Respondent, that will be “crucially relevant” in the exercise of the discretion, telling against an extension of time. It may well be decisive. But, as Mr Bourne put it in his oral submissions in the second appeal, the converse does not follow. In other words, if there is no forensic prejudice to the Respondent, that is (a) not decisive in favour of an extension, and (b), depending on the ET’s assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the ET sees the facts; and the facts are for the ET. I do not read the decision of the EAT in DPP v Marshall [1998] ICR 518 (and in particular pages 527H-528G, which were relied on by Mr Allen and Mr Sugarman) as contradicting this approach; but if it does, I bear in mind that the observations relied on are from the EAT, and pre-date DCA v Jones.

Miller

(1) The EJ’s Decision

14. I must pay tribute to the EJ. He had many issues to decide, after a long hearing, and produced an impressive Reserved Judgment at some speed. Mr Allen described the decision as a “tour de force”. I agree. Two of the 17 issues before him concerned whether there should be extensions of time. He recorded that, unusually, the parties wanted him to decide whether there were “generic” reasons for extending time. This was difficult as it was common ground that it was for a Claimant to satisfy the ET that it was just and equitable to extend time. The delays ranged from six weeks to 17 years. Nonetheless, he felt able to give the guidance which the parties had asked for.

15. He said that he had also been asked to decide the effect of a “Moratorium” issued by the Respondent in 2013. He correctly summarised its effect and express purpose in paragraph 32 of his Reasons. In paragraph 58, he held that reliance on the Moratorium was a good reason to extend time. He did not give any reasons for this view, but it is obvious why it would be just and equitable to extend time in favour of a person who relied on a promise by the Respondent that it would not take a time point against him, and did not issue a claim in time. Of course, the parties cannot extend time by agreement. But given the overt purpose of the Moratorium, it would be perverse to refuse an extension of time to such a Claimant.

16. He was also asked to consider two cases on their individual facts, if he was against the Claimants on the generic grounds. In those two cases, he found that it was just and equitable to extend time (paragraphs 59 to 61). In one, the Respondent had conceded that an extension would be just and equitable.

17. He summarised the law which he had to apply at paragraphs 30 and 31 of his Reasons, and referred to further cases in paragraphs 46 to 48. I did not understand that it was suggested that the EJ erred in any way in his legal directions to himself, or in his analysis of the cases he referred to. He said in paragraph 48 that “If the only reason for a long delay is a wholly understandable misapprehension of the law, that must be a matter which Parliament intended the tribunal to take into account”.

18. In paragraph 49, he referred to DPP v Marshall. I understood from counsel’s oral arguments that this was more controversial, but do not consider that anything he said about that case is wrong. He made the obvious, and correct, distinction between these cases and Marshall. Marshall concerned a relevant decision which “came out of left field”. By contrast, during the long history of the O’Brien litigation (which Mr Allen helpfully summarised for me), what had at first been described as an argument which was “bound to fail” (per the Court of Appeal in Ministry of Justice v O’Brien [2008] EWCA Civ 1488; [2009] ICR 593), began to look more and more compelling (I note that Mr O’Brien succeeded, on the time limit issue at first instance, the ET did not decide the issue under the 2000 Regulations). The ground of complaint in Marshall was completely new. The ground of complaint in these cases was not. But it was subject to a “blocking provision” (Regulation 17 of the 2000 Regulations) which needed to be disapplied; a similar provision having been disapplied by the Northern Ireland Court of Appeal in Perceval-Price v Minister of Economic Affairs [2000] IRLR 380. There was no advance publicity in Marshall until the Advocate General’s Opinion. O’Brien, on the other hand, had been much discussed from the time of the Court of Appeal’s decision in 2008.

19. I have been shown extracts from the parties’ skeleton arguments for the hearing. It is clear that the EJ fairly summarised the parties’ contentions at paragraphs 33 to 45 of his Reasons. He listed the factors relied on by the Claimants in paragraph 34 and 35. For example, the claims were hopeless between 2007 and 2013; and it was inappropriate to bring a hopeless claim against the Respondent. He understood the Claimant’s argument that O’Brien was a test case, and that there was no point bringing a claim until there was a final decision in O’Brien; that it was argued that this would have led to the very flood of claims which the Moratorium was designed to avoid.

20. The Respondent’s submissions included that this was special pleading by Judges; but they were experienced lawyers and were in a better position than the ordinary litigant. There was no good reason why Judges should be in a better position about time limits than other litigants. None had taken any legal advice until shortly before they issued their claims. Only two lead Claimants asserted that they did not know about the litigation until shortly before they issued their claims. The rest accepted that they had known about the litigation from July 2010 onwards, and some had known all along. The lack of belief in the strength of the claim was not a good reason for extending time. By the time the Supreme Court referred the case to the CJEU in July 2010, it was clear that the chances were improving; the Advocate General issued a favourable Opinion in November 2011. Two associations of Judges had obtained favourable advice probably no later than the second half of 2008. It was clear from 2008 that the Respondent was taking time points. It was not necessary for the Respondent to point to any special prejudice beyond that of facing claims which would otherwise be time-barred.

21. The EJ’s conclusions on the generic grounds other than the Moratorium are in paragraphs 50 to 57 of his Reasons. In paragraph 50 he said that the Claimants were sophisticated litigants. They would all have known pretty soon that, as part-timers, they had no access to the Respondent’s pension scheme. None took advice. All must have known that if they had a claim, a limitation period would apply to it. There was much material and publicity. There had been 23 articles since 2000.

22. In paragraph 51, he noted that all the Claimants, apart from two, had known about the litigation for many years before they made their claims, most around the time of the judgment of the Court of Appeal, though two had known from the start. It was difficult to accept that any Immigration Judge (“IJ”) or EJ who was in post did not know about the litigation as their professional bodies were taking advice about it, and one association intervened in the proceedings in 2010. No-one had received bad legal advice. From the outset, Mr O’Brien had advice from “distinguished leading counsel” to the effect that he had a good case but would probably have to go to Europe to prove it. The EJ inferred (reasonably, on the material before him) that the advice obtained by the specialist associations must have been positive, too.

23. At paragraph 55, he rejected the point about test cases. It was difficult to accept that experienced lawyers could believe that the fact that O’Brien was a test case relieved them of any duty to make a claim in time. If they had had doubts, they should have taken advice; but none did. He accepted the submission that the Respondent did not have to show specific prejudice. In paragraph 56, the EJ concluded that, “whatever post hoc rationalisation has taken place, the most likely explanation for the delay” was that given by one of the Claimants: “I don’t back losers”. It was “no coincidence that as Mr O’Brien’s chances of success seemed to improve the number of judges willing to overcome such scruples as they might have had about commencing proceedings, increased”. It seemed that there was a large crowd of onlookers watching a race, knowing that if the outsider won, they would benefit greatly, but doubting his chances, waiting until he unexpectedly pips the favourite at the post, only to object when the bookmaker refuses to accept their bets on the understandable ground that the race is over.

24. The EJ accepted the Respondent’s submission that much of this was special pleading by Judges. In an ordinary case, the generic points would be hopeless. All the relevant facts were known throughout. No-one was given wrong advice. The issues were well defined. No Claimant took advice until it was too late. Most Judges knew about O’Brien in 2008. By 2010, things were looking up. The typical delay was years, not months. No special rules attach to test cases and it was surprising that a Judge should think that “they do or even might”. The fact that the Claimants were all Judges made their position worse, not better. The position of the IJs and EJs who got advice in 2008 was “particularly problematic”. “In short there are no generic grounds on which I can find that it is just and equitable to extend time though each claimant affected by this decision will suffer the prejudice of losing what would otherwise have been a valuable claim” (paragraph 57).

(2) The Submissions

25. Mr Allen submitted that there were three errors in the approach of the EJ.

a. His focus was on whether there was a good excuse for the Claimant’s delay, rather than on whether it was just and equitable to extend time, so that, on a fair reading of the Judgment, he was applying a reasonably practicable approach. His skeleton argument put it this way: the “tone shows a certain disdain for the nuanced arguments put forward”.

b. The EJ did not consider the exercise of the discretion on a “comprehensive basis”. The law was that the ET has to make a “balancing assessment”, and if the reasons showed that the ET had not done so, that was an error of law. Mr Allen made various detailed criticisms in his skeleton argument. In oral argument they included the following points.

i. The EJ did not “balance off” the fact that O’Brien was a test case.

ii. The EJ did not sufficiently analyse the history of the O’Brien case.

iii. The EJ failed to appreciate that even if there was no good reason for the delay, it could still be just and equitable to extend time (see the line of EAT decisions which includes Rathakrishnan v Pizza Express UKEAT 0073/15, 23 October 2015).

c. The EJ did not properly consider the reasons for, and effect of the Moratorium; the ET would have been swamped if the Claimants had issued their claims in time.

26. Mr Cavanagh submitted that it was quite clear from the language used by the EJ in a number of different passages in the Judgment that he was applying the correct test, that is, whether it was “just and equitable” to extend time. It was unlikely that this experienced EJ and former Regional Chair would have fallen into that trap. He submitted that the discretion is a wide one, and provided a factor is relevant on the facts, the weight which the ET gives it is a matter for the ET. Mr Allen’s submissions were disguised attacks on the weight which the ET had given to the relevant factors.

27. He submitted that the Rathakrishnan line of cases was not relevant. They concerned a different question, which is whether, in the absence of any evidence from a Claimant (or of any evidence which is accepted by the ET), the ET can nonetheless extend time. This was not such a case, because there was plenty of evidence from the Claimants to explain their delay. The question, in this case, rather, was what the ET should make of that evidence. This was all the more so, given the way in which the issues were put before the EJ by the parties. The Claimants all explained, in their witness statements, what they knew about O’Brien, and when, and their reasons for waiting to issue their claims until they did so. The reasons for their delays were a substantial part of their cases, both in their evidence and in their skeleton arguments. I accept that submission.

28. He submitted that the Moratorium did not help the Claimants.

(3) Discussion

29. Mr Allen disarmingly volunteered that he had no intention of re-arguing the facts. However, his basic legal submission, and the points he developed from that submission, amounted to an invitation to me to do exactly that. At the risk of over-simplifying, I consider that his submission came close to the proposition that this broad discretion must be exercised in a particular way, which requires each ET in every case, however different, to rehearse the factors in section 33 of the 1980 Act, and if an ET does not expressly rehearse the factors, and “balance them off” appropriately, it errs in law.

30. I reject that submission, if made. It is not the function of the EAT, on an appeal on a point of law, to give detailed instructions to ETs about how they are to exercise a wide discretion which Parliament has given to them, and not to the EAT. It is clear from DCA v Jones that it is for the ET to decide (subject to Wednesbury) what factors are relevant to the exercise of its discretion. What weight it decides to give to those factors, having decided that they are relevant in any case, is, axiomatically, a question for the ET.

31. The EJ had had comprehensive written and oral submissions from leading counsel on both sides in this case. He summarised those fairly, and at proportionate length. He understood the test case submission, but rejected it.

32. I do not accept the submission that the ET was obliged expressly to consider what would have happened if the claims had been issued in time, and what difference that would have made to anyone. That is not what the relevant provisions require. What they require is that a Claimant issues his claim inside the limitation period, and if he fails to, that he persuades the ET that it is just and equitable to extend the time for making the claim. What would have happened had the Claimant complied with that primary obligation is neither here nor there. The likelihood (if it be one) that a claim issued within the limitation period would have been stayed is neither here nor there, nor is the fact that if all the claims had been issued in time, there would have been a flood of them.

33. I do not understand how the Moratorium, which was published after the claims were issued in this case, is relevant. As Mr Cavanagh pointed out, the Respondent was taking time points until the Moratorium was published. Neither the fact that, after the Supreme Court had rejected the defence of objective justification in 2013, the Respondent decided to devise a pension scheme for part-time Judges, and to issue the Moratorium, nor the reasons for that Moratorium, can, in my judgment, cast any light on whether it is just and equitable to extend time for those Judges whose claims were well out of time by 2013.

34. Mr Allen told me he advanced this argument in the ET, so it cannot be said that the ET was not aware of it. All that can be said is that the ET was not persuaded by it. There is nothing “extraordinary” in the contrast in the position of those who can and those who cannot rely on the Moratorium. They are not in a position which is, in material respects, analogous. Before the Moratorium, there was no Moratorium to rely on; nor was the legal position absolutely clear. The Moratorium was published because, in the wake of the 2013 decision of the Supreme Court, it was obvious that a new pension scheme would have to be devised, that that would take time, and that, absent a Moratorium, there would be a large number of new claims. The issue is not whether, as Mr Allen put in his reply, it would have been “just and equitable” to have a flood of claims before the Moratorium, but not after it was published. The issue is whether it was just and equitable for time to be extended for those who should have made claims before the Moratorium was published. This submission almost amounts to an argument that the Respondent should have issued a Moratorium before the decision in the Supreme Court in 2013, and because it did not, it was just and equitable to extend time in favour of the Claimants (and see paragraph 54 of the EJ’s Reasons).

35. In my judgment the EJ was not required to say more about relative prejudice than he did. It is clear from the last sentence of paragraph 57 that he was alive to the prejudice which the Claimants would suffer if time was not extended, and that he took that into account. He was also entitled to take the view he expressed in paragraph 55 that the Respondent did not have to show specific prejudice.

36. For these reasons, I conclude that the EJ was entitled to refuse to extend time on the various generic grounds which were advanced by the Claimants in Miller. I dismiss this appeal.

Thompson

(1) The Facts

37. Claimant 2 was appointed a part-time fee-paid Valuer Chair in 1999. That appointment was in the Residential Property Tribunal Service (“the RPTS”). The RPTS was not part of the court system. Its sponsoring department was the Department of Communities and Local Government, not the Lord Chancellor’s Department. The functions of the RPTS were transferred to the First-tier Tribunal (“the FTT”) on 1 July 2013.

38. Claimant 2’s appointment was renewed. He was last re-appointed to a fee-paid post on 1 April 2009. On 1 April 2011 he was appointed a part-time salaried Valuer Vice-President. On 1 July 2013, he was appointed full-time salaried Valuer Vice-President. Ad hoc pension provision was made for him once he became a salaried Valuer, but he did not get access to the Judicial Pension Scheme (“the JPS”) until 1 July 2013. The ET was considering, not a claim based on the period of service as a salaried part-timer (see paragraph 5 of the ET’s Reasons) but a claim based on his part-time fee-paid service, which ended on 1 April 2011.

(2) The ET’s Decision

39. The EJ said in paragraph 1 of his Reasons that the claims he was considering were the fourth instalment of a large series of claims. At paragraph 11, he referred to and summarised his decision in Miller. I accept Mr Bourne’s submission that the EJ intended by this to incorporate his reasoning in Miller in the decision in Edge, without repeating it verbatim.

40. In paragraph 14, the EJ held that time for presenting a claim based on Claimant 2’s fee-paid service expired, following Miller, on 30 June 2011. His claim was presented on 20 June 2013, just 10 days short of being two years out of time (Reasons, paragraph 15).

41. In paragraph 14, the EJ recorded Claimant 2’s evidence that he did not know about O’Brien until he read about it in Estates Gazette, or possibly on the Respondent’s website, in early 2012. In May that year he went to a meeting of former and serving Chairs called to discuss the litigation and its implications. A firm of solicitors was there to give advice. He consulted them after the meeting about the time for bringing a claim. He was told “on balance” there was no rush to make a claim as he had not yet retired and his claim had not crystallised; he probably had not yet suffered a detriment and he was experiencing ongoing less favourable treatment. He therefore decided not to bring a claim then. He only did so when told that, when he transferred to the FTT, he would become a member of the JPS. He thought that that could well be a crystallising event.

42. That transfer was initially planned for 1 April 2013 but it was delayed until 1 July 2013. In paragraph 16, the EJ noted Claimant 2’s evidence in cross-examination that he did not know what happened in other Tribunals and did not know that salaried Judges were entitled to a pension until early 2011. The ET observed that though this might seem “very surprising”, there were virtually no salaried Judges in the RPTS, and none at Claimant 2’s level. He knew that there was a difference in treatment for pensions from 24 March 2011. He knew he had to start a claim as soon as he was in the JPS as “the unfairness would then stop”.

43. The EJ recorded the parties’ submissions in paragraphs 17 and 18. Ms Crasnow submitted, baldly, that if time had expired, it was just and equitable to extend it. This record of her oral submissions reflects her written submissions on this point. Mr Bourne submitted that it was not just and equitable to extend time. Claimant 2 must have known that salaried Judges were more favourably treated from 24 March 2011. After the meeting in May 2012 he must have known that there was a risk that time was running against him, a risk which he chose to take. That submission echoes evidence given by Claimant 2 in cross-examination. The agreed note of that says, “… then told unclear when 3m [triggered] … you prob [haven’t] reached trigger. solicitors tend to hedge things around … valuers don’t do such things … we are schooled in precision … if there was a risk in that advice I chose to run it …”

44. The EJ decided in paragraph 20 of his Reasons that it was not just and equitable to extend time. Claimant 2 was aware of the all the salient facts, including that there was a time limit for bringing claim, by May 2012 at the latest. To be told that “on balance” there was no need to bring a claim was to be told that the position was uncertain, and that “one is taking a risk by not” making a claim. This was not a case of acting on negligent legal advice. When time began to run was an issue which needed to be decided by the courts and “there were arguments to be had either way”. It seemed to the EJ that the solicitors were aware of this and that they appeared to have advised Claimant 2 of this. Even if they did not do so expressly, to be told that something is the case “on balance” is to be told that it is “far from clear cut”. The solicitors seem to have known that and to have advised him of that. “On balance” means “not clear cut”. The EJ then said that Claimant 2 “was therefore taking a risk by not commencing proceedings immediately. [Claimant 2’s] claim must therefore be dismissed …”.

(3) The Submissions

45. Mr Sugarman made three submissions orally, which reflected the points in his skeleton argument.

a. The EJ applied the wrong test. The “therefore” in the final sentence of paragraph 20 shows the EJ was applying a reasonably practicable test; in other words, because Claimant 2 knew that he could claim in May 2012, it was reasonably practicable for him to claim then. Claimant 2 was not a lawyer and was in a unique position because he had moved from a part-time fee-paid to a part-time salaried post. The EJ’s reasoning only dealt with Claimant 2’s knowledge.

b. The EJ failed to take into account a highly relevant factor: the balance of prejudice between the parties. Mr Sugarman submitted in his skeleton argument that the length of an extension of time is not relevant to whether it is just and equitable to extend time, unless the delay would make a fair trial difficult or impossible, relying on Afolabi.

c. The EJ took the wrong approach to Claimant 2’s knowledge. He ignored the advice that Claimant 2 was actually given, which was that he was still suffering a detriment, and should have asked, but did not, whether it was reasonable for the Claimant to rely on the legal advice he was given. Claimant 2 acted promptly once he thought he had to. The EJ set the bar too high by suggesting that a Claimant could only rely on negligent legal advice to be granted an extension of time.

46. Mr Bourne submitted that if I accepted his contention that the EJ incorporated by reference his reasoning in Miller in this Decision, it was clear both that the EJ had applied the right test, and that the EJ had dealt adequately with the balance of prejudice to the parties. The EJ had not made the mistake highlighted in the Rathakrishnan line of cases, because he had not said, “There is no explanation, therefore I cannot extend time”. Further, on the question of prejudice, he pointed out (by reference to the materials which were before the ET) that that was not the way the case for Claimant 2 had been put. What the EJ had to do, rather than considering the case at large, was to assess, in the light of the Claimant’s explanation for the delay, and the EJ’s findings in Miller on the generic points, whether it was just and equitable to extend time.

47. The EJ could not fairly be criticised for not giving long reasons for his refusal to extend time, as the material he had to work with (Claimant 2’s witness statement, Claimant 2’s skeleton argument, and Claimant 2’s evidence) was not extensive. There was nothing at all in his witness statement about his delay. The real issue was whether, given that Claimant 2 accepted in cross-examination that he had chosen to run a risk in May 2012 by not bringing a claim, the EJ was, nonetheless, compelled to hold that it was just and equitable to extend time.

48. Reliance on negligent legal advice might well be a reason for extending time. But to the extent that the slender evidence disclosed what it was, the advice here was not negligent. It is now clear that it was wrong, but the advice was given “on balance”, so Claimant 2 knew that the position was doubtful. Claimant 2 understood that he was taking a risk by not making a claim in May 2012.

Discussion

49. I have already decided, in Miller, that the EJ in that case dealt adequately with relative prejudice. I have also already indicated that I have accepted Mr Bourne’s submission that the EJ in this case intended to and did incorporate his reasoning in Miller in his Reasons in this case. It follows that I must reject Mr Sugarman’s submission that the EJ erred in his approach to prejudice. That point is reinforced by the fact that the balance of prejudice was not, in any event, relied on by Claimant 2 as a reason why time should be extended.

50. I also accept Mr Bourne’s submission that the EJ did not apply the wrong test. That is clear from the reasoning in Miller, but also, in my judgment, from the structure of paragraph 20. I reject the submission that the “therefore” in the last sentence shows that the EJ applied the wrong test. What it shows, rather, is the EJ’s view that, on the facts, he could not find that it was just and equitable to extend time, because the Claimant took advice in May 2012, and knew then, from that properly cautious advice, that he had a claim and that there was a risk that time was running. The EJ was entitled on these facts to conclude that properly cautious advice which proves to be wrong is not the same as negligent advice, and does not provide the same sort of excuse for not bringing a claim in time. The position might well have been different if Claimant 2 had been told unequivocally that time had not started to run. That being so, the precise nature of the advice that Claimant 2 received was not material. It was equivocal, the doubt concerned when time started to run, and he should have protected his position by making a claim. The advice referred to the three-month time limit (see the notes of Claimant 2’s cross-examination).

51. I reject the suggestion that the EJ was bound to take into account in Claimant 2’s favour that he was not a lawyer. The point, rather, is that the Claimant asked for, and received, legal advice. The advice was not clear-cut, and he chose to run the risk that it might be wrong. It is of interest that the EJ extended time in the case of Mr Edge, who was also a Valuer Chair, and also therefore a valuer and not a lawyer, as the EJ noted. He first became aware of the possibility of bringing a claim in late July 2011 and lodged his claim on 2 August 2011. Despite knowing nothing about ET proceedings, he went on the relevant website and printed off a claim form (Reasons, paragraphs 12 and 13).

52. I dismiss this appeal.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Thompson v Ministry of Justice & Ors (Part Time Workers) [2016] UKEAT 0004_15_1503 (15 March 2016) URL: http://www.bailii.org/uk/cases/UKEAT/2016/0004_15_1503.html Cite as: [2016] UKEAT 4_15_1503, [2016] UKEAT 0004_15_1503

United Kingdom Employment Appeal Tribunal