McGrath v Ministry Of Justice

An Employment Tribunal may use a judicial member’s own knowledge and experience when deciding an issue, provided that a party is given a fair opportunity during the hearing to address the relevant observations. The question is whether the tribunal has approached the matter with a closed mind, not whether it has experience of the subject.

For the comparison required by regulation 2(4) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the focus is on work actually performed. Shared participation in deciding cases does not establish comparability where the respective roles, skills, experience and functions mean that each worker contributes something materially different.

The claimant had been an employer-side lay member of Employment Tribunals. He claimed that exclusion from the judicial pension scheme was unlawful part-time worker discrimination. He nominated a full-time salaried Employment Judge as his comparator.

At a preliminary hearing, Employment Judge Macmillan held that the two roles were not comparable and dismissed the claim. Five grounds of appeal had already been rejected. The remaining ground alleged that the Employment Judge had unfairly used his own experience, had pre-judged the issue and had disregarded evidence from a retired salaried Employment Judge.

The central issue was whether the use of that experience created procedural unfairness or apparent bias and, if it did, whether the result was in any event inevitable.

1. Appeal dismissed. The Employment Judge did not approach the comparator issue with a closed mind. He was entitled to draw on his substantial experience of tribunal practice because the claimant had a proper opportunity at the hearing to address the Judge’s observations and challenge his view of the respective roles.

2. The Judge did not decide the case solely by private knowledge. He identified both common features and material differences from the evidence, including the salaried Employment Judge’s job description. The retired judge’s evidence did not materially conflict with the findings. Although all panel members participate in deciding cases, that shared core function was only one part of the required comparison.

3. Applying Matthews v Kent and Medway Towns Fire Authority [2006] ICR 365, regulation 2(4) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 concerns work actually undertaken. Qualifications, skills and experience matter where they show that workers make different contributions to apparently similar work. The differences between a salaried Employment Judge and a lay member therefore meant that they were not truly comparable.

4. In an alternative conclusion, the Tribunal held that even if there had been a procedural irregularity, the appeal would still fail. Under the approach in Jafri v Lincoln College [2014] ICR 920, a legal error requires remission unless it is immaterial and the result would be lawful notwithstanding it. That approach can apply to a complaint of procedural unfairness where the same outcome before a fresh tribunal is inevitable. Here it was inevitable that the proposed comparison failed.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal, London (Central): at a preliminary hearing on 13 March 2014, Employment Judge Macmillan held that the claimant and a full-time salaried Employment Judge were not comparable for the purposes of regulation 2(4) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and dismissed the claim. Written reasons were promulgated on 23 April 2014.