Martineau v Ministry of Justice

The Employment Appeal Tribunal has jurisdiction under section 21 of the Employment Tribunals Act 1996 to hear an appeal on a question of law by a person who was not a party to the Employment Tribunal proceedings. The appeal remains subject to procedural controls against abuse of process or obstruction of the just disposal of proceedings.

That jurisdiction may appropriately be exercised where a lead-case decision binds stayed claimants, the lead claimant does not appeal, and the proposed appeal raises arguable legal grounds. In a part-time-worker claim, the comparison concerns typical fee-paid and salaried workers. An Employment Tribunal may reject evidence as insufficient to establish less favourable treatment, but must give brief adequate reasons where that evidence is a critical part of the case.

Fee-paid immigration Judges claimed that their remuneration for hearing cases and writing judgments was less favourable than that of salaried Judges, contrary to regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Kyrie James’s claim was designated as a lead case under Rule 36 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The claims of Martineau and Quigley were stayed, but the lead-case decision was binding on them.

The Employment Tribunal rejected the lead claim. James did not appeal, so Martineau and Quigley sought to appeal the decision although they had not been parties to the lead proceedings. The central issues were whether the EAT had jurisdiction to hear that appeal, whether the Employment Tribunal’s conclusion was perverse or failed to take account of relevant evidence, and whether its reasons were adequate.

1. Jurisdiction. Section 21 of the Employment Tribunals Act 1996 confers jurisdiction by reference to the existence of a question of law arising from an Employment Tribunal decision or proceedings. It contains no express limitation confining appeals to parties below. Any restriction on non-party appeals must therefore arise from other provisions, including the procedural rules.
2. Rule 3(7) of the Employment Appeal Tribunal Rules 1992 controls inappropriate appeals. In ordinary circumstances a non-party appeal may be abusive or obstructive. A relatively rare exception may arise where a lead-case decision binds stayed claimants, the lead claimant does not appeal, and the proposed appeal raises arguable grounds. The present appeal was not an abuse of process. It was more sensible to appeal the lead decision than to obtain dismissals in the stayed claims and appeal those decisions separately.
3. The Appellants were not parties to James’s Employment Tribunal proceedings merely because their claims had been considered together or stayed. Rule 18 of the EAT Rules did not provide an independent route to appeal; it operated only once an appeal within the EAT’s jurisdiction existed.
4. Less favourable treatment. The relevant comparison was between a typical fee-paid Judge and a typical salaried Judge, not the individual lead Claimant. The Claimant bore the burden of establishing that the assumptions underlying the composite fee were wrong, either because the work took two full seven-hour days or because salaried Judges did not devote the remaining time to other judicial work.
5. The Employment Tribunal was entitled to conclude that the Forbes report did not compel a finding of less favourable treatment and that the conclusion was not perverse. The report was not a specific comparison of the actual working practices of fee-paid and salaried Judges, and its reference to two full days could be understood as describing assumptions underlying the points system.
6. Nevertheless, the Forbes report was a critical part of the Claimant’s case. Under Rule 62 of Schedule 1 to the Tribunal Regulations, the Employment Tribunal had to explain, albeit briefly, why the report did not establish less favourable treatment. Its reasons did not do so. The appeal was allowed on that ground and the matter was remitted to the same Employment Tribunal for reconsideration after further submissions, with liberty either to confirm its decision with adequate reasons or to proceed otherwise.

• Employment Tribunal: The lead claim brought by Kyrie James was rejected. The decision bound the stayed claims of Martineau and Quigley.
• Employment Appeal Tribunal: The appeal was allowed because the Employment Tribunal gave inadequate reasons concerning the Forbes report. The issue of less favourable treatment was remitted to the same Employment Tribunal.