Secretary of State for Justice v Slee

The Court of Appeal dismissed the Secretary of State's appeal against the Employment Tribunal's decision (upheld by Silber J) that the respondent qualified for compensation under the Justices of the Peace Act 1949 (Compensation) Regulations 1978 (the Crombie Regulations). The primary legal questions were the construction of regulation 3(1)(b) (who counts as employed in assisting the holder of the office of justices' clerk) and of regulation 12(1)(c) (the meaning of “sought suitable employment” when assessing long-term compensation).

The court held that the duties properly characterised as duties of the office of justices' clerk can include administrative and out‑of‑court functions closely related to running a magistrates' court, and that the Employment Tribunal was entitled on the facts to find that the respondent predominantly assisted the justices' clerk at both material dates. On regulation 12 the court held that the deeming provision in regulation 7(2) does not limit the meaning of “suitable employment” in regulation 12, but that the Tribunal's wider factual assessment of the respondent's efforts and circumstances was adequate and, on the facts, there was no real prospect of a different outcome on remittal.

The respondent was a qualified solicitor employed as a court clerk/legal adviser and later as a director with the functional title Deputy Justices’ Chief Executive at Wimbledon Magistrates' Court. After a 2003 reorganisation her post was removed and she claimed long‑term compensation under the Justices of the Peace Act 1949 (Compensation) Regulations 1978. The Employment Tribunal allowed her claim on the basis that she was employed in assisting the justices' clerk in the performance of that office's duties on 2 February 1995 and immediately before the material date (1 July 2003), and that she had sought suitable employment within the meaning of regulation 12.

Procedural history: the Secretary of State appealed to the Administrative Court where Silber J dismissed the appeal ([2010] EWHC 73 (Admin)). The Secretary of State then appealed to the Court of Appeal.

Issues before the Court of Appeal: (i) construction of regulation 3(1)(b) — whether the respondent was predominantly employed in assisting the holder of the office of justices' clerk in the performance of that office's duties on the material dates; (ii) construction of regulation 12(1)(c) — whether the Tribunal applied the correct test in deciding that the respondent had sought "suitable employment" for the purpose of assessing long‑term compensation.

Reasoning on regulation 3: the court analysed statutory material (including the 1949 Act and subsequent statutes and rules) and concluded that the duties of the office of justices' clerk encompass judicial and a range of administrative duties closely connected with running a magistrates' court. The Tribunal's factual findings, which concluded the respondent predominantly assisted the justices' clerk, were supported by the evidence and permissible even where duties "straddled" roles; the Secretary of State had not established that the respondent's work fell outside assistance in the duties of the office.

Reasoning on regulation 12: the court accepted that regulation 7(2)'s deeming of certain employment as "suitable" for resettlement compensation does not determine the meaning of "suitable employment" in regulation 12. Regulation 12 requires a broader, overall assessment and operates to ensure claimants do not undermine the public interest by taking materially inferior employment to inflate claims. The Tribunal had made detailed factual findings about the respondent's enquiries, applications and circumstances; on that evidence there was no realistic prospect that a differently directed Tribunal would have reached a different outcome, so remittal was unnecessary.

Outcome sought and disposition: the Secretary of State sought to overturn the Tribunal's findings and Silber J's decision; the Court of Appeal dismissed the appeal and upheld the Tribunal's conclusions on both issues.

Appeal dismissed. The Court of Appeal held that (a) the Employment Tribunal was entitled to find that the respondent was employed in assisting the holder of the office of justices' clerk in the performance of that office's duties on the material dates for the purposes of regulation 3(1)(b); and (b) although regulation 7(2) does not define "suitable employment" for regulation 12, the Tribunal's broader factual assessment under regulation 12(1) was adequate and, on the facts, there was no realistic prospect that remittal would produce a different result.

Appeal to Court of Appeal from Silber J in the Administrative Court; Silber J had dismissed the Secretary of State's appeal against the Employment Tribunal's decision (see [2010] EWHC 73 (Admin)). The Employment Tribunal decision at first instance (Central London) allowed the respondent's claim under the 1978 Regulations. The Court of Appeal heard the Secretary of State's appeal against Silber J's decision and dismissed it.