Slee v Secretary of State for Justice

Under the Crombie Regulations, a notice of termination may record that an office has already terminated; it need not be prospective. An instruction requiring an employee to attend alternative employment is not an offer for the purposes of regulation 11(1)(e)(ii), because an offer requires a genuine choice whether to accept it. Any alternative employment must also be reasonably comparable with the lost office. For regulation 3 eligibility, it is insufficient that an employee performed some duties assisting a justices’ clerk. The employment must have been wholly or predominantly devoted to that assistance, assessed at each relevant date by comparing those duties with the employee’s other work.

The claimant was employed in the magistrates’ court service and lost her former office during a restructuring involving the replacement of individual justices’ clerks by regional managers and bench legal managers. After she resigned, an Employment Tribunal found that she had been constructively dismissed but rejected her claim for long-term and retirement compensation under the Justices of the Peace Act 1949 (Compensation) Regulations 1978 (the Crombie Regulations).

The claimant appealed against the finding that regulation 11(1)(e)(ii) prevented compensation. The respondent challenged the findings that the claimant satisfied regulations 3 and 4. The central issues were whether the correspondence constituted notice and an offer of reasonably comparable employment, whether the restructuring caused a loss of office within regulation 4, and whether the claimant’s employment was predominantly devoted to assisting a justices’ clerk under regulation 3.

1. The appeal succeeded on the regulation 11 issue. The letter of 22 February 2005 was written notice of termination within regulation 11(1)(e)(ii), even though it recorded an existing termination and did not specify a future termination date. The wording of the regulation contemplated both prospective and retrospective notice.
2. The letter of 22 March 2005 was an instruction, not an offer of employment. It required the claimant to report to another court, placed her under another manager, and provided for a later assessment of her suitability. An offer requires the recipient to have a choice whether to accept it. Accordingly, regulation 11(1)(e)(ii) did not bar the claim.
3. Alternatively, even if the letter had contained an offer, the proposed employment was not reasonably comparable with the lost office. It was inferior and conditional upon a later assessment. The court also considered that employment resulting from sex discrimination and a breach of regulation 19 of the Maternity and Parental Leave etc Regulations 1999 could not satisfy that requirement.
4. The respondent’s regulation 4 challenge failed. Loss of office was distinct from continued employment. The claimant lost her office when the new bench legal manager structure replaced the previous office at Wimbledon. The restructuring amounted to a grouping of clerkships under a justices’ clerk under Part III of the Justices of the Peace Act 1949.
5. On regulation 3, the Employment Tribunal had applied the wrong approach. Following Berkshire and Oxfordshire MCC v Gannon & another [2000] ICR 1003, the Tribunal had to identify the claimant’s duties assisting the justices’ clerk, identify her other duties, and decide whether her employment was wholly or predominantly devoted to the former. That assessment had to be made at both 2 February 1995 and the material date.
6. The regulation 3 issue was remitted to a differently constituted Employment Tribunal. The respondent was ordered to pay one-third of the claimant’s costs. Permission to appeal was refused because this was a second appeal requiring permission from the Court of Appeal.

• High Court (Administrative Court) — The court allowed the claimant’s appeal on regulation 11, upheld the regulation 4 conclusion, and remitted the regulation 3 issue to a differently constituted Employment Tribunal.
• Employment Appeal Tribunal — The respondent’s appeals concerning constructive unfair dismissal, maternity-related statutory breaches and sex discrimination had been dismissed in a judgment handed down on 27 September 2007, cited as UKEAT 03493/06. The present judgment concerned the claimant’s separate appeal on compensation.
• Employment Tribunal — By decision dated 5 April 2006, the Tribunal rejected the claimant’s compensation claim under regulation 11(1)(e)(ii), while finding that she satisfied the requirements of regulations 3 and 4.