S, a qualified solicitor, was appointed as a court clerk at Wimbledon Magistrates’ Court in July 1993. The role involved assisting the justices’ clerk and the giving of legal advice. On 1 July 1994, S became a training manager. S was also told that she was to continue working as a court clerk, of which she accepted. From 1 July 1996, S took on extra responsibility, namely, she was required to act as the justices’ clerk in certain defined circumstances. She then became known as the ‘deputy justices’ chief executive’ (JCE).
Between 2002 to 2003, the Greater London Magistrates’ Courts Authority (the predecessor to the Department of Constitutional Affairs (DCA)) underwent a restructuring: clerks were replaced by regional managers and deputy clerks by bench legal managers (BLMs). S was ring-fenced for a BLM position. She was one of two competitors for the position. In June 2003, S began a period of sick leave, which together with maternity leave lasted until February 2005. Whilst away from work, her competitor was awarded the BLM position. In February 2005, S was informed that her former role had been removed.
She was, however, scheduled to return to work on 7 April (to take up a different job). The day before her return, she resigned, claiming unfair constructive dismissal. A claim to that effect was then brought in the employment tribunal. In addition, S claimed sex discrimination, breaches of the Maternity and Parental Leave etc Regulations 1999, SI 1999/3312, and compensation under the Justices of the Peace Act 1949 (Compensation) Regulations 1978, SI 1978/1682 (the Crombie Regulations).
Held: Appeal against Tribunal’s decision dismissed
The tribunal had not erred in resolving the issue of whether S fell within reg 3 of the Crombie Regulations. It had properly considered what the position was as at 2 February 1995 and immediately before 1 July 2003. On 2 February 1995, S was contracted to assist the justices’ clerk then in office; she could not have been delegated or assigned any duties other than the duties of the justices’ clerk. S was not a JCE at that time; such office did not come into existence until April 1995. As for the position immediately before 1 July 2003, the JCE position was no longer in existence.
The person to whom S had been an assistant could only have been employed as a justices’ clerk: that person could only have delegated to S the work functions of that office, in the performance of the duties of that office. Those facts represented complete answers to the claim relating to reg 3. They were not the only answers, however: the tribunal’s alternative approach to resolving the reg 3 issue – by way of ascertaining as a matter of ‘impression’ what proportion of S’s employment was predominantly devoted to providing assistance to ‘the holder of the office of the justices’ clerk in the performance of the duties of that office’ – was also appropriate. In all the circumstances, the Secretary of State’s submissions on reg 3 did no more than show disagreements on factual issues; they did not come close to identifying perverse findings or any errors of law by the tribunal.