Appeal No. UKEAT/0247/15/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 19 February 2016

Before
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
(SITTING ALONE)

THE MINISTRY OF JUSTICE	APPELLANT

(1) MR D EDGE
(2) MRS F BURTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR CHARLES BOURNE QC
(of Counsel)
and
MS RACHEL KAMM
(of Counsel)
Instructed by:
Government Legal Department
Employment Group
One Kemble Street
London
WC2B 4TS

For the First Respondent	MR SAUL MARGO
(of Counsel)
Instructed by:
Beers LLP
North Quay House
Sutton Harbour
Plymouth
Devon
PL4 0RA

For the Second Respondent	MR SAUL MARGO
(of Counsel)
Instructed by:
Leigh Day Solicitors
Priory House
25 St Johns Lane
London
EC1M 4LB

SUMMARY
PART TIME WORKERS

The Employment Appeal Tribunal (“the EAT”) allowed an appeal against a Decision of the Employment Tribunal (“the ET”) refusing permission to the Respondent to raise an argument on remedy.  The ET held that it had already decided the issue at a previous hearing - it having been conceded by the Respondent - and the Respondent could not re-open it.  The EAT held that the ET had not decided the issue, which went to remedy, not liability.

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

Introduction
1.	This is an appeal from the Employment Tribunal (“the ET”) sitting at London (Central).  The ET consisted of Employment Judge Macmillan (“the EJ”) sitting alone.  In a Judgment sent to the parties on 23 December 2014, the EJ refused the Respondent leave to amend.  I shall refer to the parties as they were below, and I shall refer to Mr Edge as “Claimant 1” and to Mrs Burton as “Claimant 2”.  On 9 September 2015 Langstaff J, the then President, ordered that the appeal be set down for a Full Hearing.

Background
2.	The Decision that is the subject of this appeal is a chapter in litigation between many part-time Judges (“the Judges”) and the Respondent.  The Judges’ claim was based on the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the 2000 Regulations”).  The Judges make monetary claims and claims for pensions.  They say that they were treated less favourably than comparable full-time Judges because they were part-timers.

3.	Litigation was started by Mr O’Brien, a former Recorder.  The claim had a chequered history.  He succeeded on one issue in the ET.  But by 2008 the Court of Appeal described his claim as “bound to fail”.  He then appealed successfully to the Supreme Court.  In 2010 the Supreme Court referred the case to the Court of Justice of the European Union (“the CJEU”).  On 6 February 2013, with the benefit of a Decision of the CJEU and having heard argument on the question of objective justification, the Supreme Court held that the Respondent had treated Mr O’Brien, on the grounds that he was a part-timer, less favourably than a comparable full-time Judge, by denying him access to the judicial pension scheme (“the JPS”) and that that treatment was not objectively justified (O’Brien v Ministry of Justice [2013] UKSC 6; [2013] ICR 499).  The Supreme Court declared that he was “entitled to a pension on terms equivalent to a circuit Judge”.  The Supreme Court could not order him to be admitted to the JPS as that was a statutory scheme.

4.	Claimant 1 was a part-time Valuer Member of the Residential Property Tribunal Service (“RPTS”) from 16 February 1982.  On 17 January 1987 he was appointed a Valuer Chair.  On 14 January 2011 he retired from both roles.  He became aware of the possibility of making a claim against the Respondent in late July 2011 and presented his claim form on 2 August 2011, about 3½ months out of time.  His claim was for “Part-time worker pension for the variable periods worked between 1982 and 2011” [the answer to question 5.2 on his claim form].  The remedy he claimed in section 6 was “Pension for part time work … from 1982 to 2011”.  His claim was stayed until the summer of 2013.

5.	Claimant 2 was appointed a Lawyer Chair in the RPTS on 9 July 1997.  She retired on 19 June 2011.  Her ET1 was lodged in September 2011.  At question 5.2 she referred to the Judgment of the Supreme Court in 2010 and said, “I may be entitled to a pension”.  At question 6 she said the purpose of the claim was “to preserve any entitlement to a pension”.  She applied to amend her claim to add Particulars dated 13 June 2013.  She enlarged her claim “in respect of pension entitlement” to add various monetary claims.  At paragraphs 9 and 10 she pointed out that she was not entitled to a pension either under the Judicial Pensions and Retirement Act 1993 (“JUPRA”) or under the Judicial Pensions Act 1981 which took account of her part-time work.  She said that the differential treatment described in paragraphs 9 to 23 of the amended grounds was not justified, in breach of the relevant Directive.  The remedy she sought was a declaration that the failure to grant her a judicial pension was an act of unlawful discrimination and that she was entitled to “a judicial pension” to accrue and be paid on the basis of her part-time work and to incur no contribution above the maximum permitted for a judicial pension, and for other connected remedies.

6.	On 1 July 2013 full-time and part-time salaried judicial officers in the RPTS were admitted to the JPS for the first time.  So these issues concern the historic treatment of those office holders.  A first tranche of concessions was made by the Respondent in June 2013.  It was headed “List of judicial offices covered by the concession made at the case management discussion on 3rd June 2013”.  Under the heading “Introduction”, it said:
“As outlined in the speaking note on behalf of the MoJ and DCLG [Department for Communities and Local Government] these respondents accept that where there is a salaried full-time comparator those appointed to an office listed below and who had to be legally qualified in order to be eligible for appointment are entitled to a pension.  However this is subject to the following …”

Under five bullet points a number of qualifications were set out.  The document then said:
“For the avoidance of doubt remedy/the amount of pension has yet to be determined.”

7.	On 15 July 2013 a list of issues was agreed for a Preliminary Hearing in September 2013.  They included whether (1) the Claimants were workers for the purposes of the 2000 Regulations; (2) the Claimants had a full-time comparator and, if so, (3) whether there was objective justification for the differences.  The parties agreed that Claimant 1 was the lead Claimant in relation to these offices in respect of the offices of Valuer Member and Valuer Chair.  At that stage he relied on a salaried Vice-President in the RPTS as his full-time comparator.  On 19 August 2013 the Respondent put in an ET3 in his case.  At paragraph 22 it said this:
“22. In addition, the Respondent submits that the Claimant’s named comparator, the Valuer Vice President, was not a member of the pension scheme under [JUPRA].  Only those Valuer Vice-Presidents who transferred into the First-tier Tribunal in July 2013 became entitled to join JUPRA as salaried other members of the First-tier Tribunal - some time after the Claimant retired.  Under paragraph 7A of Schedule 10 to the Rent Act 1977 the Secretary of State for DCLG had a discretion to give pensions to Presidents and Vice-Presidents of the rent assessment panels.  Pension arrangements were made for Presidents and Vice Presidents but these differed between individuals.  There was not one single pension scheme.  The Claimant therefore suffered no less favourable treatment than his comparator during his period of service.”

8.	In the event, the September Preliminary Hearing was adjourned because reliance on new comparators was introduced.  On 10 October 2013 directions were given for a hearing on 20 January 2014, and on 22 November 2013 the Respondent lodged amended grounds of resistance.

9.	The Judgment arising from the January 2014 hearing was sent to the parties on 13 March 2014 (“the March Decision”).  In the March Decision the EJ held that it was just and equitable to extend the time for Claimant 1 to make his claim.  The January hearing, of which the March Decision was the result, had lasted five days.  The Claimants were all Valuer Members and Valuer Chairs in the RPTS.  In paragraph 2 of his Reasons the EJ said that the central issue was whether the Claimants could identify a salaried comparator: that is, a judicial office holder whose work was the same as or broadly similar to their work.  In paragraph 3 he said that there were five other issues.  One of those was that the Claimants other than Claimant 1 claimed that they had been less favourably treated because they had been paid less than their salaried counterparts for training days and for sitting fees.  At that hearing, as is apparent from the Respondent’s closing submissions, and as is reflected in the EJ’s Reasons, the Respondent made some further concessions.  At paragraph 7 of the closing submissions the Respondent said this:
“7. Note that a number of issues are now common ground:
a. If any valuer member or valuer chair had a full-time comparable worker for a relevant period, the Respondent concedes that for that period they were treated less favourably than their comparator in relation to their pension entitlement, daily fee and training day fees.
b. The Respondent does not pursue the argument that any less favourable treatment of valuer chairs in relation to pension entitlement is objectively justified.
…
d. For the avoidance of doubt, the Respondent does rely (if necessary) on objective justification in relation to (i) the lack of pension entitlement for valuer members; and (ii) the daily fee for valuer members and valuer chairs.
…”

10.	At paragraph 4 of his Reasons the EJ recorded that the Respondent had made:
“4. … some important concessions (although it does so obliquely by saying merely that certain arguments will not now be pursued) but all are conditional on a comparator being first identified.  The first is that if there was a full-time comparable worker … then both the valuer members and the valuer chairs were treated less favourably than the comparator in relation to pension entitlement, daily fee and training fees.  The second is that in the case of valuer chairs only, the less favourable treatment in respect of pension entitlement cannot be justified.  Thirdly, in respect of both valuer chairs and members, the payment of less than a full days [sic] fee for attending training cannot be justified.  Objective justification remains an issue however in the matter of the daily sitting fee and, for valuer members only, pension provision.”

11.	In the next section of the Reasons the EJ outlined the position about comparators.  He then dealt with the out of time point.  As a preamble to what he called “the comparability exercise”, the EJ examined the history of the RPTS and went on to consider in some detail the roles that were performed first by Valuer Members and Valuer Chairs.  That consideration occupied paragraphs 26 to 31 of his Reasons.  In paragraph 27 he described the structure of the Property Chamber (Residential Property Division) into which the functions of the RPTS had been transferred.  In paragraphs 32 to 56 of his Reasons he compared the roles of the Claimants with the roles of the various full-time Judges on which they relied as comparators.  At paragraph 57 he said that he proposed to apply the law as he had in a previous Decision, which was under appeal, and his conclusions were in paragraphs 60 to 69.  He decided, in brief, that the roles of Valuer Chair and Valuer Member were not broadly similar but that the work of Valuer Chairs and Tax Judges was broadly similar.  The upshot was that the Claimants’ claim succeeded.  The way in which the EJ expressed that conclusion can be seen from various passages in the Reasons.  At paragraph 4, under the heading “Reserved Judgment”, he said this:
“4. The work of valuer chairs is broadly similar to that of judges of the Tax Chamber of the First-tier Tribunal.  The claims in respect of exclusion from the Judicial Pension Scheme and in respect of training day fees therefore succeed.”

12.	In paragraph 1, under the heading “Reasons”, he said this:
“1. These claims are the fourth instalment of a large series of claims brought by holders of various fee paid judicial offices … in which the claimants complain of their exclusion from the Judicial Pension Scheme and that, in a variety of respects, their terms and conditions are less favourable than those of comparable full time salaried judges. …”

13.	In paragraph 3, in which he listed the issues he had to decide, he said this: “In addition to complaining of their exclusion from the Judicial Pension Scheme, …”.  In paragraph 70, under the heading “Disposal”, he said this:
“70. The complaints of Mr Edge and Mr Ian Humphries in their roles as valuer chairs therefore succeed in so far as they relate to access to the Judicial Pension Scheme and fees paid for attending training.  So far as the differential in the daily fee is concerned, there is the issue of objective justification to be heard. …”

14.	Then, at the end of that paragraph, he said:
“70. … By not later than 18 April 2014 the Mr Edge [sic] and Mr Humphries will send full particulars of the amount they are claiming to the respondent …”

15.	On 14 April 2014 the solicitor acting for the Claimants emailed the Respondent’s solicitor after a telephone conversation and said this:
“Thanks for your time on the phone this afternoon and to clarify my understanding from our conversation:
1. The Valuer chairs were successful in claiming JUPRA pension and pay. …”

The Respondent did not reply to that email.

16.	On 15 May 2014 there was a further hearing.  The Respondent conceded that the findings in the March Decision applied to Lawyer Chairs.  The Respondent raised a “reason why” liability argument in relation to the RPTS pay claims.  The lead Claimant Lawyer Chair was identified for the Claimants in relation to daily fees and writing-up time.  That was listed for October 2014.  In October 2014 there was a further Preliminary Hearing.  The RPTS daily-fee claim was postponed until May 2015, and the Respondent raised a new issue for the Remedy Hearing.  The Respondent was told to make a formal application to amend its grounds of resistance.  It applied on 3 November 2014 for permission to amend (if it were necessary) to argue at the Remedy Hearing that it was not just and equitable or the RPTS Chairs to be entitled to membership of the JPS rather than the less generous RPTS scheme.  Paragraph 4 of that application to amend reads as follows:
“4. The Ministry of Justice wishes to make the submission that it would not be just and equitable for the RPTS chairs to be entitled to membership of the Judicial Pension Scheme.  The reason why the claimants did not have any pension entitlement was their part-time status.  However, the reason why they were not in the Judicial Pension Scheme (in particular) was that they were appointed by DCLG to RPTS and no judicial office holders in RPTS were members of that scheme.”

The Decision Appealed
17.	On 17 December 2014 there was a further Preliminary Hearing.  Mr Bourne QC, who represents the Respondent, frankly told me that the hearing had been listed for 2.00pm but because of his commitments to some ELAAS cases in the morning he did not actually arrive at the Tribunal until well into the afternoon and the hearing did not start until 4.30pm.  As a result of this the hearing proceeded, in his words, “at a canter”.  If and to the extent that the EJ fell into error, no criticism attaches to him having held the hearing in those circumstances and having produced a Reserved Judgment with impressive speed.  It was sent to the parties on 23 December.  

18.	The appeal in this case turns, among other things, on the effect of Regulations 5 and 8 of the 2000 Regulations, which were cited by the EJ in paragraph 7 of his Decision, and this is a convenient moment to set them out.  Under the heading “Rights and remedies”, Regulation 5 provides as follows:
“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.”

19.	Regulation 8 reads as follows:
“8. Complaints to employment tribunals etc
…
(7) Where an employment tribunal finds that a complaint presented to it under this regulation is well founded, it shall take such of the following steps as it considers just and equitable -
(a) making a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates;
(b) ordering the employer to pay compensation to the claimant;
…
(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 …”

20.	The EJ set out the background to the hearing in paragraphs 1 to 4.  In paragraph 1 he referred to the March Decision as being that the work of Valuer Chairs was broadly similar to that of salaried Judges in the Tax Chamber of the First-tier Tribunal (“the FTT”) and:
“1. … in consequence, that the claims brought by … [the] lead claimants “in respect of exclusion from the Judicial Pension Scheme … therefore succeed.”  The latter conclusion was expressed in this way rather than as a distinct finding on a separate issue, because of a concession made by Mr Bourne that if I found that the claimants had a full time comparable worker then the valuer chairs had been treated less favourably than the comparator in relation to pension entitlement.  The important distinction between my holding and Mr Bourne’s concession, the express reference in the holding to the Judicial Pension Scheme and Mr Bourne’s reference only to ‘pension entitlement’ is explained by the context, without which it would not have been permissible for me to extrapolate from the terms of the concession to the terms of the holding.”

21.	He said more about the background in paragraph 2 of his Reasons.  He said that most of the claims of the part-time Judges were specifically that they had been excluded from the JPS.  I note that it is not the way that Claimant 1 expressed his claim, nor Claimant 2, initially at any rate, either.  The EJ said in paragraph 3 that the claims he heard in February and March of that year were part of the working out of what “equivalence to the JPS meant”.  He went on, “But, importantly, they were also about entitlement”.  The only live pension issue that affected all of the Claimants was entitlement:
“3. … although by virtue of Mr Bourne’s concession which I refer to in paragraph 2 above ‘entitlement’ in this case was reduced to the question whether the work of this group of fee paid judicial office holders who were excluded from the JPS was broadly similar to [that of a comparator] of salaried judicial office holders who were members of the JPS. …”

22.	In paragraph 4 he said that after the Judgment it had been necessary to hold a Preliminary Hearing in relation to the issues that had been left on one side.  One of those was whether there had been less favourable treatment of the Claimants in relation to the daily sitting fee.  On 15 May the Respondent’s counsel said that the Respondent was arguing that the daily sitting fee was objectively justified and the Respondent wanted to argue that the shortfall was not attributable to the fact that the Judges concerned were part-time workers.  The Respondent was ordered to provide full Particulars and did so on 6 June.  Paragraph 2 of the defence said that fees and salaries in the RTPS were historically lower than in the FTT; in other words, the difference was explained by the difference in the origins and histories of the jurisdictions.  The Respondent was given permission to make a “reason why” defence in relation to the daily sitting fee.

23.	The EJ then referred to the Preliminary Hearing on 13 October 2014.  The Respondent, he said, raised for the first time its wish:
“5. … to take the same reasons why point in respect of the pensions claim at the remedy hearing which would follow the claimants’ success the previous March. …”

24.	I pause there to note that it is clear that the EJ anticipated that there would be a Remedy Hearing following on from his decision in the March Reasons.  He went on to say that the Respondent had only just realised that the point was not expressly pleaded.  The EJ said:
“5. … As I understand it, this is not a case of an earlier failure to plead an issue which was understood to be available, rather a very belated realisation that the point was equally available in connection with the claimants’ pension entitlement as their sitting fee entitlement. …”

25.	He recorded that the Claimants’ representatives had objected strongly and that the Respondent had therefore been told to apply for permission to amend in writing.  The Employment Judge then recorded the Respondent’s contention that the application to amend the grounds of resistance was not necessary as this was a remedy point; in other words, it went to what it was just and equitable to award as compensation.  The EJ said (paragraph 6):
“6. … The proposed amendment fleshes out the reasons why defence in the pensions context by pleading that had the claimants been salaried full time chairs in the RPTS they would still not have been members of the JPS but would have been treated in the same way as the Vice-Presidents. …”
that is, by an individually designed scheme that varied or by a lump sum payment.

26.	He then set out Regulations 5 and 8 of the 2000 Regulations.  He summarised the law on res judicata by reference to a citation from the Judgment of Elias LJ in Foster v Bon Groundwork Ltd [2012] ICR 1027:
“4. … The principle of res judicata can be summarised as follows: where an issue has been litigated before a judicial body and determined as between the parties it cannot be reopened.  It is binding as between them, and the parties are estopped from reopening it.  The issue may be one of fact or of law.  However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim.  In Arnold v National Westminster Bank plc [1991] 2 AC 93, 105 Lord Keith of Kinkel observed that the principle applies where
“a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.”
…
7. The well known principle enunciated in Henderson v Henderson 3 Hare 100 was expressed in that case by Wigram V-C, at p 115:
“… The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” ”

27.	The EJ then recorded the parties’ submissions.  Mr Bourne QC had submitted that the words used by the EJ in paragraph 4 of the March Decision were not inevitable and had no echoes in the Reasons themselves.  His submission was that this was a remedy not a liability point so that no leave to amend was required.  The only issue was whether the Respondent should be barred from raising the issue at this stage.  The EJ recorded the Claimants’ submission that this was “an artful, yet ill-fated attempt to undo the judgment of 13th March”.  Mr Bourne QC’s submission was recorded by the EJ that remedy was an issue for all of the pension claims and was likely to lead to a new JPS for fee-paid Judges.  In paragraph 10 the EJ said that the Respondent conceded that the Claimants were entitled to a pension but not that they were entitled to a pension equivalent to the JPS because that would put them in a falsely advantageous position as no salaried officer in the RPTS had such a pension before the transfer to the FTT.  If the Respondent was not able to argue this, the Claimants would be in a better position than their Vice-Presidents.  No real prejudice would be caused, as this issue could be listed with the “reasons why” defence on the daily-fee claim in May 2015.  The Claimants would get a smaller pension, but if the Respondent were not able to take the point, the Claimants would be over-compensated.  There was an important distinction between the “reasons why” defence in the daily-fee claims.  In the latter it was a complete defence, and so it was a liability issue, but in the case of the pension claims it could only go to quantum.  The EJ recorded that the Respondent acknowledged that it should have raised the point about pensions sooner, but that it would be disproportionate and contrary to the overriding objective in Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 if it were not allowed to add this argument to the hearing listed for May.  The res judicata submissions were irrelevant, because the “reasons why” issue was not before the Tribunal in the earlier hearing.

28.	The EJ’s conclusions are at paragraphs 11 to 13 of his Reasons.  At paragraph 11 he said that for the reasons given in paragraphs 1 and 2, he rejected Mr Bourne QC’s first submission.  The words used in paragraph 4 of the Judgment “reflected the agreed issues before me”.  Mr Bourne QC’s first submission, it will be recollected, was that paragraph 4 of the Judgment had no necessary connection with the Reasons given in the March Decision and that this was a remedy not a liability point.  The EJ’s reason for rejecting that submission was that the EJ had decided on liability that the claims “in respect of exclusion from the Judicial Pension Scheme” succeeded.  It had been expressed in that way because of the concession that if a comparator was found the Valuer Chairs had been treated less favourably “than the comparator in relation to pension entitlement” (paragraph 1).  What the EJ recognised to be an important distinction between the terms of the concession and the terms of the holding was:
“1. … explained by the context, without which it would not have been permissible for me to extrapolate from the terms of the concession to the terms of the holding.”

29.	He supplemented this by saying at paragraph 2 of his Reasons that the complaint is:
“2. … with some very minor exceptions … not the general one that they were not entitled to a pension on retirement but the specific one, that they had been excluded from the JPS. …” (Original emphasis)

30.	At paragraph 12 the EJ rejected the submission that this was a remedy issue.  He said this:
“12. … The primary purpose of the hearing in February and March was to determine entitlement to a pension.  This entailed determining whether the claimants’ [sic] had the right not to be treated less favourably than a full time comparator had been treated, that right only applying if the treatment was not objectively justified (a point taken and then abandoned by the respondent) or was on the ground that the worker was part-time … The reason why point - the reason for the treatment complained of - is therefore quite clearly a liability issue. …”

He went on to say:
“12. … Moreover, in the light of the holding in paragraph 4 of the judgment I do not accept that this point is open to the respondent to take on remedy as, pace O’Brien, the claimants’ [sic] are entitled to a pension equivalent to that of their comparators. …”

31.	He then said that it seemed to follow that if the “reasons why” defence succeeded in respect of the daily sitting fee the problems that Mr Bourne QC had identified in relation to over-compensation would be somewhat mitigated.  He concluded that permission to amend was required.  At paragraph 13 he refused permission to amend.  He said that the issue had necessarily been before him in February and March because if he had upheld the Claimants’ contentions that their work was broadly similar to all manner of salaried judicial office holders:
“13. … it would have availed them not if the right not to be treated less favourably did not apply which it would not have done if either their exclusion from the JPS could be objectively justified or the reason for their exclusion was not their part time status but some other reason.  The former was before me expressly but withdrawn, and the latter must have been before me by implication because of reg 5(2)(a) [of the 2000 Regulations] but was never relied on.  At the very least therefore the rule in Henderson v Henderson applies.  But I would go further and hold than [sic] this was an issue actually determined in the liability hearing albeit by the route of silent concession.”

Submissions
32.	Mr Margo, for the Claimants, submitted that the claim of less favourable treatment framed by the Claimants rested on their exclusion from the JPS not on the mere absence of any pension provision.  The EJ found that they had suffered less favourable treatment in the way that they had alleged.  The reason for that was not dealt with expressly, but it must necessarily have been that the reason was because they were part-time Judges.  He submits that the Respondent was trying to recast the complaint as a complaint of a failure to provide any pension rather than the complaint that it was: a complaint that the Claimants had been excluded from the JPS.  The EJ had decided that discrimination had occurred and the just and equitable compensation question could not entitle the EJ to reopen the question of whether the discrimination had occurred at all.
33.	He submitted that this was an issue estoppel case.  No questions of fairness arose whether in relation to the application to amend or in relation to any application to withdraw a concession.  The EJ had decided that the Claimants’ claim of less favourable treatment had succeeded, and because of the way they had framed their claim that entailed a finding about the remedy to which they were entitled.  That was how the EJ expressed the decision, and that is how the parties understood the decision at the time and for some time until a few months later.  If the EJ had been wrong to do that, the Respondent’s remedy was to apply for a review of the March Decision or to appeal it, and it was now far too late for the Respondent to do either of those things.  What the Respondent had conceded was that the less favourable treatment was exclusion from the JPS or from a judicial pension.  That involved a concession that the reason why the Claimants had been excluded from the JPS was an unlawfully discriminatory reason.  The Respondent could not withdraw that concession so as to argue that they had been excluded form the JPS for a different reason.  If the EJ had decided on liability that the reason why the Claimants were excluded from the JPS was on the basis of discrimination against them as part-time workers, it could not be right at the remedy stage to reopen the question of why they had been excluded from the JPS.

34.	Mr Bourne QC submitted, in short, that the EJ was wrong to characterise a concession on liability as a concession on remedy as well.  The EJ did not have any issue about remedy before him, as he himself recognised; so, he could not have decided both the question of liability and the question of remedy.  That was contrary to the scheme of the 2000 Regulations.  The Respondent had sold the pass on liability but not on remedy.  It was clear that the EJ did not think that the Respondent had made a concession on remedy, as remedy was still at large under Regulation 8.

Discussion and Conclusions
35.	The way that the parties have argued the case makes it clear to me that the real question is whether the EJ was right to decide that the point that the Respondent had wished to raise by way of amendment had already been decided by him in the March hearing.  Since both parties agree that that is the issue, it seems to me to follow that there is no question really of whether the EJ should have given permission to amend or should have given permission to withdraw the concession.  The real issue is whether the EJ was right to decide what he did decide.

36.	In my judgment, the EJ erred.  The Respondent was not seeking to withdraw the concession on liability but was seeking to raise an argument that went to remedy, liability having been conceded and continuing to be conceded.  The EJ’s decision in March 2014 was based on the Respondent’s concession that if there were a comparator the Claimants had been treated less favourably than the comparator in relation to pension entitlement.  The EJ’s decision based on that concession was that the Claimants’ claim “in respect of exclusion from the JPS succeeded”.  This was partly based on his view in paragraph 3 that the claims that he had heard in February and March were about equivalents to the JPS and about “entitlement”.  He fleshed this out in paragraphs 12 and 13 of his Reasons, where he referred to the fact that the primary purpose of the February and March hearing was to determine entitlement to pension.  The decision that the Claimants’ work was broadly similar to that of a comparator would have got them nowhere “if their exclusion from the JPS could not be objectively justified”.

37.	The first difficulty with the EJ’s analysis is that he was not yet deciding anything about entitlement; rather, he was deciding that the Respondent was responsible for a breach of the 2000 Regulations.  That was a question of liability.  It might well have consequences for the Claimants that might in due course compensate them for that breach of the 2000 Regulations, but he did not, in my judgment, decide more than that the treatment that they had received was less favourable because they were excluded from the JPS.

38.	The next linked problem with the EJ’s analysis is that there is no necessary legal connection between the success of the less favourable treatment claim framed as it was and access to the JPS.  I reject Mr Margo’s submission to the contrary.  It follows that a concession that the Claimants were treated less favourably than full-time comparators because, unlike full-timers, they did not have any pension and that was not objectively justified is not a concession that the Claimants were necessarily “entitled” to be in the JPS.  The claim was that the Claimants had been treated less favourably than full-time comparators because the Claimants were excluded from the JPS.  Under the 2000 Regulations the success of that claim leads to an entitlement to some form of compensation for that less favourable treatment.

39.	The EJ, in my judgment, has equated the success of that claim with the particular remedy.  He has elided the liability and remedy stages by saying that his decision that the exclusion claim succeeded as a claim under the 2000 Regulations meant that the Claimants were entitled not only to a pension but to a pension equivalent to the JPS, but the question of remedy for that successful claim was to be the subject of a further hearing.  In March 2014 the EJ did not decide that the claims to be included in the JPS succeeded, nor could he have done.  He decided something different, which was that the exclusion claims succeeded as claims of less favourable treatment under the 2000 Regulations.  That conclusion does not and could not as a matter of law entail any specific conclusion about remedy.

40.	In my judgment, at paragraph 2 of the Reasons the EJ was conflating liability and remedy.  The fact that in breach of the 2000 Regulations a person does not have a pension or has been excluded from a particular pension scheme simply entails that that person should get what remedy is just and equitable to reflect the loss suffered as a result of the discrimination, but it does not necessarily mean that that person must get access to a particular pension scheme.  A concession that a person was wrongly not given a pension does not entail a concession about how that wrong should be put right, still less a concession that it should be put right by the offer of a particular type of pension.  What the EJ refers to as the “reasons why defence” is not a defence to the pension claim as such.  The Respondent was not seeking to withdraw the concession that the failure to provide the pension was a breach of the 2000 Regulations, because the Respondent was not saying that the Claimants were not entitled to any pension.  The Respondent was conceding that the Claimants were entitled to a pension, but what the Respondent was not conceding was that that pension was the JPS, and the Respondent wished to argue at the remedy stage that the remedy should not be a pension equivalent to the JPS.  The EJ did not accept that this was a remedy issue, but the Respondent’s case was not that the failure to provide any pension was for a reason not relating to part-time status.  The Respondent accepted that it was for such a reason.  The Respondent’s point, rather, was that the pension that the Claimants should get should not be the JPS or an equivalent but rather what the salaried Vice-Presidents in the RPTS got.  It is difficult to see on what basis the Respondent should be shut out by its concession on liability from arguing this different issue.

41.	The key point, in my judgment, on the “reasons why defence” is that the Respondent was liable for a breach of the 2000 Regulations if part-time status played a part that was significant - i.e. more than trivial - in the exclusion of the Judges from any pension entitlement or from the JPS specifically.  It is well known that if a discriminatory reason plays a significant part in a person’s less favourable treatment - that is, a part that is more than trivial - the treatment has occurred because of a discriminatory reason.  However, treatment can occur for more than one reason, and one reason could be a non-discriminatory reason.  The non-discriminatory reason could not be a defence on liability provided that part-time status played a significant - that is, a more than trivial - part in the discriminatory treatment, but if there was a non-discriminatory reason for the treatment as well as the discriminatory reason, that could well be relevant to the question of remedy.  It seems to me that Mr Margo’s submissions elide this distinction.

42.	The reason for the less favourable treatment that was decided at the liability stage does not shut out the advancing at the remedy stage of a concurrent reason for the treatment.  The concurrent reason for the treatment is irrelevant at the liability stage if part-time status played a more than trivial part in the less favourable treatment, and the Respondent conceded that part-time status did play such a role in the less favourable treatment, but that concession is not a concession that there was no other reason in play concurrently.  In my judgment, there was no obligation at the liability stage to bring forward a case on a concurrent cause of the treatment if the Respondent was conceding that the discriminatory reason played a legally significant part in the less favourable treatment.  I do not consider, therefore, either that the EJ when he decided the liability issues that he did decide this point nor that the rule in Henderson v Henderson was engaged.  The Respondent was not obliged to bring forward a case at the liability stage on any concurrent reason for the treatment that operated alongside the discriminatory reason.  The reason for that is that, the Respondent having conceded that the discrimination played a significant part in the treatment, a concurrent non-discriminatory reason could not be a defence to the claim.

43.	I also consider that if the EJ - if he did, as he appears to have done - decided that the effect of O’Brien as a matter of law is that a person is entitled automatically to the pension to which his comparator is entitled he erred.  The only comparator in O’Brien was a circuit Judge.  I have already recorded what the Supreme Court held in O’Brien.  The case was remitted to the Employment Tribunal for the determination of the amount of the pension to which Mr O’Brien was entitled.  The decision in O’Brien does not seem to me to entail that every part-time Judge is entitled to the same pension as the person he chooses as his full-time comparator.  It will depend in any case on the application to the facts of the test in Regulation 8.  There is nothing in the express reasoning in O’Brien that compels the conclusion that the EJ appeared to draw from it.  This point was simply not an issue in that case, as I think Mr Margo accepted.

44.	For these reasons, I consider that the EJ erred in not permitting the Respondent to raise this issue at the Remedy Hearing.  The Respondent did not require leave to amend, as appears to be agreed, and it seems to me that the issues about withdrawing concessions do not arise either.  For those reasons, I allow the appeal.

45.	I have heard submissions from Mr Bourne QC about the effect of the decision in Jafri v Lincoln College [2014] EWCA Civ 449 and my view, subject to anything that Mr Margo wished to submit to me on the topic (and he did not), was that it is unnecessary for me to remit this case to the EJ on this point.  The clear, and the only right answer is that the Respondent should not have been shut out from raising this point.