Engel v Joint Committee for Parking and Traffic Regulation outside London

A fee-paid judicial office holder may be a worker under section 230(3)(b) of the Employment Rights Act 1996. A decision by a judicial office holder to allocate or withhold allocation of cases is ordinarily a judicial function because allocation can materially affect the fair and efficient determination of disputes. Judicial immunity may therefore apply even where non-allocation has the practical effect of suspending the office holder from work, or is alleged to be disciplinary or retaliatory.

The appellant was a fee-paid parking adjudicator appointed under statutory parking-enforcement provisions. After making a protected disclosure about the Chief Adjudicator, he was allocated no further personal or postal cases and brought a detriment claim under section 47B of the Employment Rights Act 1996.

The Employment Tribunal struck out the claim under rule 18(7)(b) of the Employment Tribunals Rules of Procedure, holding that it had no reasonable prospect of success. It accepted that the appellant was arguably a worker, but held that the Chief Adjudicator’s decisions were judicial functions attracting immunity and that the respondent could not be vicariously liable. The appeal concerned worker status, vicarious responsibility and whether non-allocation was a judicial function.

1. Appeal dismissed. The appellant was a worker for the purposes of Part IVA of the Employment Rights Act 1996. His appointment involved contractual obligations: he undertook to sit as an adjudicator, subject to workload and commitments, in return for a fee. A fee-paid judicial office holder is a worker in the relevant statutory and EU-law context, as recognised in O'Brien v Ministry of Justice [2013] UKSC 6, para 42.
2. The Chief Adjudicator had both judicial and administrative functions. Determination of appeals and related adjudicative responsibilities were judicial. Appointment, reappointment, removal and disciplinary decisions were not judicial functions. The allocation of appeal cases was the critical issue.
3. Listing and allocation decisions are, in principle, judicial functions. They can affect when a case is heard, the time available, the evidence relied on, and the suitability of the judge or adjudicator to determine a class of case. The fact that allocation may be carried out in practice by an officer does not make it merely administrative. The observations in Perceval-Price v Department of Economic Development [2000] IRLR 380, approved in O'Brien v Ministry of Justice [2010] UKSC 34, did not decide otherwise.
4. The non-allocation decision had the practical effect of preventing the appellant from working and earning fees. That effect did not determine its legal character. Even if the decision was a free-standing disciplinary measure or was taken for the alleged improper purpose of retaliating for the protected disclosure, it remained covered by judicial immunity.
5. Judicial immunity protects independent decision-making and applies to judges of all ranks. It is not lost because the decision was erroneous, malicious or improperly motivated. The Chief Adjudicator’s decision therefore could not found a detriment claim for which the Joint Committee was vicariously liable under section 47B.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal’s reserved judgment sent on 29 June 2012. The appeal was dismissed.