Compromise Agreements Ltd, R (On the Application Of) v Secretary of State for Business, Innovation And Skills

The claimant sought judicial review of the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013, challenging it under the public sector equality duty in section 149 of the Equality Act 2010. The court refused the renewed application for permission to appeal on the grounds that the claim was not brought promptly and that the substantive prospects of success were insufficient.

The court accepted that the duty to have "due regard" applied but concluded the Department had carried out an adequate assessment through consultation and an equality impact assessment. There was an absence of reliable statistical evidence to show a disparate impact on protected groups and the exercise of discretion by the High Court to refuse permission for delay was proper.

This is a renewed application for permission to appeal against refusal of permission to bring judicial review proceedings challenging the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013. The claim was based solely on an alleged failure to comply with the public sector equality duty in section 149 of the Equality Act 2010; an alternative Article 1 Protocol 1 challenge was not pursued.

The procedural history was that permission was refused on the papers by Eder J, refused at an oral hearing by Blake J on 13 May 2014 (primarily on grounds of delay), and a prior application to this court was refused by Sir David Keene on the papers on 28 January 2015. The present oral application was heard before Davis LJ on 19 May 2015.

The issues for the court were:

• whether the claim was brought promptly and whether delay justified refusal of permission in the interests of good administration;
• whether the Secretary of State had given "due regard" under section 149 of the Equality Act 2010 when preparing and consulting on the Order;
• whether there were compelling reasons to grant permission despite delay.

The court examined the consultation process, the published impact assessment and annexed Equalities Impact Assessment. It noted the Department had consulted widely, produced a final impact assessment in January 2013 and explained the limited availability of data about protected characteristics of successful claimants. The court accepted the High Court's view that, given the paucity and inconclusive nature of statistical evidence and the impracticality of a detailed manual trawl of tribunal records, the Department had carried out the level of assessment reasonably required for "due regard."

Davis LJ upheld Blake J's exercise of discretion to refuse permission on the grounds of delay and lack of sufficient prospects of success; he also rejected the submission that the public interest or compelling reasons warranted permission despite delay.

The application for permission to appeal was refused. The court upheld the High Court's exercise of discretion to refuse permission on grounds of delay and lack of promptness, and concluded that the Secretary of State had given sufficient "due regard" under section 149 Equality Act 2010 in the consultation and impact assessment; there was insufficient evidence of a disparate impact on protected groups to establish a realistic prospect of success.

Permission was refused on the papers by Eder J in the High Court (date not specified in the judgment). Permission was thereafter refused at an oral hearing by Blake J on 13 May 2014. An application to this court for permission was refused on the papers by Sir David Keene on 28 January 2015. The renewed oral application to the Court of Appeal was refused by Davis LJ on 19 May 2015 ([2015] EWCA Civ 732).