Secretary of State for Justice v Slee

Under the Crombie Regulations, eligibility depends on whether the claimant’s employment was wholly or predominantly devoted to assisting the holder of the office of justices’ clerk in performing that office’s duties at the specified dates. Duties may overlap with those of a magistrates’ courts administrative body. The abolition of a justices’ chief executive post does not prevent functions performed thereafter from being duties of the justices’ clerk. The assessment is factual and may be based on the overall impression of the evidence. Regulation 12(1)(c) does not impose an ordinary duty to mitigate loss. “Suitable employment” is assessed in context, having regard to the claimant’s former role, skills, employment benefits and career prospects. The determining authority has a broad discretion whether to award long-term compensation and, if so, how much.

The claimant, a former justices’ clerk’s assistant, sought long-term compensation under the Justices of the Peace Act 1949 (Compensation) Regulations 1978 following the reorganisation of Wimbledon Magistrates’ Court and her constructive unfair dismissal.

An Employment Tribunal found that she satisfied the regulation 3(1)(b) gateway and that her claim was not precluded by regulation 12(1)(c). The Secretary of State appealed, arguing that the Tribunal had misidentified the duties of a justices’ clerk, wrongly treated administrative functions as relevant, and failed to apply a duty to mitigate. The central issues were whether the claimant had predominantly assisted the justices’ clerk at the relevant dates and whether she had sought suitable employment.

1. Appeal dismissed. The Employment Tribunal had made no error of law in finding that the claimant’s employment was wholly or predominantly devoted to assisting the holder of the office of justices’ clerk in performing the duties of that office on 2 February 1995 and immediately before 1 July 2003.
2. At the first date the office of justices’ chief executive had not yet been created. The claimant could therefore only have been assisting Mr Packer in his capacity as justices’ clerk. At the second date the chief executive post had been abolished. Functions formerly associated with that post did not remain legally separate merely because they continued to be performed in the courthouse. They could form part of the duties of the justices’ clerk.
3. The duties of a justices’ clerk were not exhaustively defined by statute. They could include wide-ranging judicial and administrative responsibilities necessary for the proper operation of the court. The same broad function could be shared by a magistrates’ courts body and the justices’ clerk, operating at different levels.
4. The Tribunal was entitled to examine the claimant’s job description, classify the functions she performed, consider the evidence about her actual work, and reach an overall impression. Its conclusion was a finding of fact. It could only be disturbed for perversity or an error of law. The high threshold in Yeboah v Crofton [2002] IRLR 634 was not met.
5. Regulation 12 gives the determining authority a broad discretion whether long-term compensation should be paid and, if so, its amount. Regulation 12(1)(c) does not impose an ordinary employment-law duty to mitigate loss. “Suitable employment” is an ordinary expression construed in context, having regard to the claimant’s former work, skills, pension and other benefits, security of tenure and promotion prospects. The Tribunal was entitled to treat a Bench Legal Manager post as the relevant equivalent employment and to conclude that the claimant had taken all reasonable steps to seek it.
6. The issue of quantum, including the matters arising under regulations 12(1)(b) and 12(1)(e), was properly left for the remedies hearing.

1. High Court (Administrative Court): the Secretary of State’s appeal against the Employment Tribunal’s 17 April 2009 decision was dismissed. The Tribunal’s finding that the claimant was eligible for long-term compensation was upheld, with quantum remitted to a remedies hearing.
2. Employment Appeal Tribunal: earlier appeals concerning the claimant’s unfair dismissal and related employment claims were dismissed, as described in the judgment.
3. Administrative Court: the claimant’s earlier appeal was allowed in the judgment identified as [2007] EWHC 2717 (Admin), and relevant issues were remitted to a differently constituted Employment Tribunal.