Fletcher & Ors v NHS Pensions Agency/Student Grants Unit & Anor

Where parties settle an appeal and later administrative action removes its practical controversy, the Court of Appeal should ordinarily decline to decide the issues. Its residual discretion to hear an academic appeal, including in public law, must be exercised cautiously and sparingly. A public-interest justification may exist where a discrete statutory-construction issue is likely to recur in many similar cases and can be decided without detailed facts. Similar stayed claims do not by themselves justify proceeding, particularly where the court cannot prescribe the terms of a scheme without specific facts. Dismissal on this ground is not an endorsement of the decision or reasoning below.

Three vocational trainees undertaking midwifery courses received NHS bursaries and suspended their training following pregnancy and childbirth. Their bursaries ceased under the existing scheme. An Employment Tribunal found no discrimination under section 14 of the Sex Discrimination Act 1975. The Employment Appeal Tribunal allowed their appeal, held that the scheme unlawfully discriminated against them, and remitted the amount and duration of any payment to a remedies hearing.

Before the Court of Appeal, the claims had been settled without admission of liability. The Secretary of State had also introduced interim arrangements for maternity absences. The appellants sought guidance on the correct legal approach, including the so-called but-for issue and whether maternity protection extended to vocational trainees. The central question was whether the court should proceed despite the absence of a live dispute.

1. Appeal dismissed. The Court of Appeal unanimously declined to entertain the appeal because the claims had been settled and the remedies hearing had not taken place. The court expressly stated that dismissal on this ground did not approve or express a view on the decision or reasoning of the Employment Appeal Tribunal.
2. Academic appeals. Scott Baker LJ, agreeing with Pill LJ, applied the principle that courts determine disputes between the parties and do not decide abstract or hypothetical questions. The authorities included Ainsbury v Millington [1987] 1 WLR 379 at 381 and The Queen v the Secretary of State for the Home Department [1993] 1 WLR 115 at 120. In public-law cases a residual discretion may exist, but it must be exercised cautiously and sparingly. Ex parte Salem recognised that a discrete statutory-construction issue likely to recur in many similar cases might justify hearing an otherwise academic appeal: The Queen v the Secretary of the State for the Home Department ex parte Salem [1999] 1 App 450 at 457(a).
3. Application of the discretion. The interim maternity scheme had been lawfully introduced under section 63 of the National Health Service and Public Health Act 1968, and treated maternity absence differently from other absence. A declaration that no scheme was required would therefore have no practical value. The court would not prescribe the precise amount or duration of payments without specific facts. The existence of six stayed cases did not provide a sufficient reason to determine an academic appeal, particularly as their facts were unknown.
4. Scope of the decision. Hooper LJ identified the EAT’s operative reasoning as treating maternity absence like other absence, requiring a minimum adequate allowance, and remitting amount and duration to the Employment Tribunal. Those issues were not determined by the Court of Appeal. The correctness of the EAT’s approach, the but-for test, and the application of maternity protection to vocational trainees remained unresolved.

1. Court of Appeal (Civil Division). Appeal dismissed on the ground that it had become academic or hypothetical: [2006] EWCA Civ 517.
2. Employment Appeal Tribunal. Allowed the claimants’ appeal from the Employment Tribunal, held that the bursary scheme unlawfully discriminated under section 14 of the Sex Discrimination Act 1975, and remitted the question of payment to a remedies hearing. Judgment delivered on 3 June 2005; no citation was stated.
3. Employment Tribunal, London Central. Unanimously found that the appellants had not discriminated against the claimants. Decision sent to the parties on 8 April 2004.