The general principle

The district judge who heard the original application refused to allow the application for access to the documents, on the basis that:

• all the relevant issues had been referred to orally in open court,
• there was no specific power in the Criminal Procedure Rules for such disclosures to be made, and
• there would be considerable administrative problems if such disclosures were to be allowed - how would any application be made? Who would provide any copies (it would be costly for the court to provide copies)? What about the delay caused by such applications?

The Administrative Court also rejected the application, on the basis that disclosure of such documents was contrary to previous authority, not provided for in the rules, and the Freedom of Information Act 2000 had carved out specific exclusion for court documents.

The Court of Appeal, in allowing the application, took the opportunity to make a bold statement of principle about the importance of open justice, and what that might mean in an age when much of the evidence and argument will be given on paper, rather than heard orally.

Delivering the judgment of the court, Toulson LJ said (para 85):

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.”

In the employment tribunal

What does this mean in the employment tribunal? Well, there can be no doubt that this development of the open justice principle was intended to apply to the employment tribunal. At paragraph 70, Toulson LJ said:

“Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state.” 

This is particularly significant given the recent rule change making it the norm that witness statements should be “taken as read” – that is, being read privately by the tribunal, rather than read out by the witness in open court.

What is covered?

The basic principle seems to cover “documents … placed before a judge and referred to in the course of proceedings”. This will clearly cover witness statements and any skeleton arguments or written submissions.

Perhaps more controversially it seems also to apply to documents contained in the tribunal bundle, at least where they are referred to in the course of evidence or submissions. Historically documents in the tribunal bundle have not been available to the public or press, even where an individual’s witness evidence is being given orally in open court.

Most bundles will contain far more documents than actually end up being referred to in tribunal, and I don’t see that this principle extends to the whole bundle, rather than just those documents which are referred to.

The application

Despite the importance of the principle, it is apparent that a specific application is necessary in order to be granted access to the relevant documents, and that the parties to the case should be allowed to make representations as to whether access should be allowed. The starting point for such an application appears to be set out at para 77 of the judgment by Toulson LJ:

“Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise.”

But it is clear that the right to access documents is not absolute. At para 97 Hooper LJ says that:

“Any power to release material to third parties would be subject to restrictions such as PII [Public Interest Immunity] and the Article 8 rights of witnesses, victims and defendants.”

As to the considerations that should apply, at para 85 Toulson LJ said:

“I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

The Court of Appeal make a number of references to the “serious journalistic purposes” of the Guardian, and it appears that the purposes for which the disclosure is sought will be something to be taken into account – although there remains a question about what might happen if access to the documents were granted for one purpose, but ended up being used for a different purpose. What if, for instance, the access granted to the Guardian ended up being used by one of its columnists to poke fun at the court process?

Practical points

There remains a question about the nature of the access that should be granted if any such application succeeds. In the Court of Appeal judgment the right is usually referred to as a right to “access” documents. However, the Guardian’s application was for copies of documents, which they could take away.

At para 84 Toulson LJ clearly refers, in the context of the Criminal Procedure Rules, to a defined procedure for the applicant to pay a prescribed fee to the court for provision of copies of documents. There isn’t any similar provision for payment of fees for copies of documents in the tribunal rules, and anything which required the tribunal to provide photocopies would be likely to be objected to strongly by the tribunals’ administration.

In the absence of any specific provision, it seems likely that in the tribunal it would be considered a right to access – that is, view – documents, rather than a right to be given copies.

The facts

Mr Homer worked as a legal advisor for the Police National Legal Database. At the time of his appointment, applicants for the role needed to either hold a law degree, or could hold a lesser qualification in law if they had exceptional experience in criminal law. Mr Homer was a former police officer, and this experience qualified him for the role without the need for a law degree. After he had been appointed, having a law degree became essential for appointment to the post, but this did not affect him as an existing employee.

In 2005, in an attempt to introduce a formal career structure, and assist with recruitment, the Police National Legal Database introduced a new grading scheme with three grades set above a starting grade. In order to achieve the most senior grade, it was necessary to hold a law degree. Mr Homer qualified for the next most senior grade, but could not reach the top grade because he did not have a law degree.

At the time this new grading structure was introduced, Mr Homer was 62. It was expected that he would retire at 65. If he was to try to get a law degree, at the same time as working, it would take him at least four years, and thus it was impossible for him to achieve a law degree, and the top grade for the role, before he retired.

Having exhausted the internal grievance procedure, Mr Homer brought a claim alleging that the requirement that an individual hold a law degree to get to the highest grade amounted to indirect age discrimination.

Indirect age discrimination arises when an employer imposes a requirement which puts people with a particular “protected characteristic” (such as people in a particular age group) at a particular disadvantage compared with others. Indirect discrimination is capable of being justified, although the main feature of the Homer case was whether the requirement for a law degree was capable of amounting to indirect age discrimination in the first place.

The employment tribunal

The employment tribunal which originally heard the case decided that the requirement for a law degree did put people aged 60 – 65 at a particular disadvantage, since if they did not already have a law degree they could not obtain the degree, and higher grade that went with it, before retirement. Younger people could.

The Employment Appeal Tribunal and Court of Appeal

Both the Employment Appeal Tribunal and the Court of Appeal found that the real reason why Mr Homer was at a disadvantage was not so much because of his age, but because of his impending retirement. If he hadn’t been shortly due to retire then he would have been able to obtain his degree and reach the higher grade.

The Supreme Court

Giving the judgment of the Supreme Court, Lady Hale said (at para 17) that:

“A requirement which works to the comparative disadvantage of a person approaching compulsory retirement age is indirectly discriminatory on grounds of age. There is … ‘unreality in differentiating between age and retirement’.”

In other words, retirement and age are so connected that a disadvantage caused by retirement is effectively the same as a disadvantage caused by age. Lady Hale drew a comparison with the imposition of a requirement for employees to have beards. This would undoubtedly amount to sex discrimination, despite the fact that it seems to relate to beards, rather than directly to gender. The two are so closely linked that it would be artificial to draw a distinction.

Commentary

I find this case very difficult to analyse. As it has made its way through various stages of the judicial process, I have gone from thinking that it couldn’t possibly be age discrimination, to thinking that it must be age discrimination, and back to thinking that it isn’t age discrimination.

One way of looking at it would be to compare Mr Homer’s situation with that of a fellow worker who was 42 at the time the requirement was imposed. Imagine that both Mr Homer and his colleague study law on a four year course. Up to age 65 and 45 respectively, they would be in exactly the same position. At that point, Mr Homer’s disadvantage would become apparent – he would retire at 65, but his colleague could continue to acquire his degree and attain the higher grade. If Mr Homer hadn’t retired, he too would have acquired his degree and attained the higher grade.

That seems to me to make it clear that the real reason for any disadvantage suffered by Mr Homer is, as the Employment Appeal Tribunal and the Court of Appeal found it, his retirement – not the particular rule or his age as such.

The Supreme Court may well agree with such an analysis but, of course, they went on to find that for these purposes retirement and age are so closely linked that they are effectively the same thing.

I’d like to suggest another way of looking at this. If it is the retirement that caused the “particular disadvantage”, then isn’t it retirement itself that requires analysis? At the time, there was an exemption from age discrimination law for retirement of employees at 65, so the retirement itself was perfectly lawful. The cause of Mr Homer’s disadvantage was his retirement, and he had no right to complain about that.

There is a curious factor about this particular case which is addressed in the judgment of Lord Hope (at para 29):

“… it was Mr Homer’s own decision to retire when he reached the normal retirement age of 65 and not stay on so that he could get the benefit of his law degree. But I do not think that it follows that his age had no bearing on the issue. The time available to complete the law degree and get the benefits that would flow from it was inevitably linked to the age of the person concerned … The number of years that [Mr Homer] had left to him before he could reasonably expect to retire meant that his age had a direct bearing on whether he would be disadvantaged by the requirement. He was, in effect, being forced to work on beyond the normal retirement age so that he could obtain the benefit. This was, in itself, indirectly discriminatory.”

So even if there was no compulsory retirement at 65 then Mr Homer would still be at a disadvantage in having to work on beyond the date at which he would normally expect to retire. If that is true, then my suggested analysis cannot be correct.

I still find this a difficult case.

As ever, criticism, clarification and illumination gratefully received in the comments.

[Note: analysis of the case by Tribunal Watch is here.]

We now have the full judgment (pdf) and the useful press summary (pdf) from the Supreme Court.

The basic facts of the case are set out in one of my earlier posts. The key question for the Supreme Court to decide was whether the business of which he was a partner could justify the compulsory retirement of Mr Seldon at 65 (or, to be strictly accurate, at the end of the calendar year in which he became 65). In order to be justified, compulsory retirement at 65 had to be a “proportionate means” of meeting a “legitimate aim”.

The issues

The employment tribunal had identified three aims as being legitimate:

“- ensuring that associates are given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm,

- facilitating the planning of the partnership and workforce across individual departments by having a realistic long term expectation as to when vacancies will arise

- limiting the need to expel partners by way of performance management, thus contributing to a congenial and supportive culture in the firm”

The issues for the Supreme Court are set out in paragraph 14 of the judgment:

“(1) Whether any or all of the three aims of the retirement clause … were capable of being legitimate aims …

(2) Whether the firm has not only to justify the retirement clause generally but also their application of it in the individual case; and

(3) Whether the ET was right to conclude that relying on the clause in this case was a proportionate means of achieving any or all of the identified aims.”

The decision

The Supreme Court held:

1) That to amount to a legitimate aim, in the context of a direct discrimination claims such as this, the legitimate aim had to be of a “social policy nature”, and could not simply be a private aim of the employer.

2) That European case law suggested that both “inter-generational fairness” (such as the first and second aim that the tribunal had identified) and “dignity” (such as the third aim that the tribunal had identified) were capable of being such legitimate social policy aims.

3) That even if these were capable of being legitimate aims they still had to actually be legitimate aims in the context of the employer’s workforce – so if there was no actual need for “inter-generational fairness” it could not be a legitimate aim for that particular employer.

4) That where there was a general justification for a particular rule, this will usually be sufficient to justify its application to a particular individual.

5) That on the facts of this case the identified aims were legitimate.

6) That the case should go back to the tribunal to decide whether compulsory retirement at 65 was a proportionate (in the European sense of “appropriate and necessary”) way of achieving the third aim, with, it seems, also the option of considering whether it was a proportionate means of achieving the first and second aims. In other words, given that the aims were legitimate, was compulsory retirement at 65 a proportionate means of achieving them? Both Lady and Hale and Lord Hope considered that the existence, at the time, of an exemption for retirement of employees at 65 could be relevant to this consideration.

Proportionality

The ultimate effect of all of this is to throw the spotlight back on to the question of proportionality. Can it be said that compulsory retirement at 65 (or the end of the calendar year in which you become 65) is “appropriate and necessary” to achieve the identified aims.

It seems to me that this of itself throws up a whole range of interesting issues.

As regards “inter-generational fairness”, the first question is presumably whether it is necessary at all to compulsorily retire the older partners at all in order to give opportunities to the associates or carry out workforce planning. It might be argued that workforce planning could adequately be dealt with by, say, long notice periods for the partners. As for opportunities for the associates, does this actually require compulsory retirement? What about moving the older partners to another status, such as “consultant”? This was one of the options that Mr Seldon seems to have suggested.

If it is necessary, is it appropriate that the compulsory retirement age is 65, rather than some other age? The judgment seems to suggest that almost any retirement age would facilitate this objective. If so, does that mean that any age is appropriate, or does it mean that no age is appropriate because none can be said to be more appropriate than any other? Is the tribunal to determine that an exact age is appropriate? If so, does the tribunal have to rule out any age other than that one? What, if any, “margin of appreciation” does the partnership enjoy?

These problems seem even more acute when considering the “dignity” point. At para 58 Lady Hale expresses some doubts (which I share) whether this actually ought to be a legitimate aim at all. It seems to me odd to say that it is not appropriate to performance manage an older worker in the way that a younger worker would be managed, but that is the state of the law at the moment.

On the basis that this is a legitimate aim, is it necessary to deal with this by means of compulsory retirement at all? There will be some interesting arguments on that point, but above all on the question of whether 65 is an appropriate age for this. What evidence is there that performance becomes a problem over 65, as opposed to over 60, 70 or 80? Both Lady Hale and Lord Hope referred to the exemption that at the time existed for retirement of employees at 65, with Lord Hope saying it was “at the relevant time, an acceptable way of achieving the legitimate aim”. That may well be so, but surely that does not necessarily make it “appropriate and necessary”. Much of discrimination law is about challenging what was once “acceptable” behaviour.

As ever, corrections, clarifications and observations welcome in the comments.

During this time period, in June 1999 the qualifying period for unfair dismissal rights was cut from two years to one year, and in October 1999 the cap on compensation for unfair dismissal rose from £12,000 to £50,000. There does seem to be a small increase in claims from 1998 to 1999, which may or may not be related to these factors.

Also during this time, from October 2004 to April 2009 the statutory dispute resolution procedures applied, which meant that some claims would be rejected because the employee had not complied with the procedures. The figures show the number of claims actually accepted, and there were a small but appreciable number of claims which were initially rejected but never properly re-submitted and accepted by the tribunals. For instance, in 2005 a total of 7,391 claims of various types were rejected for failure to comply with the new procedures, and never validly re-submitted and accepted. This may account for the slight trough in claims accepted between 2004 – 2007, although doesn’t account for 2008, when the rules were still in place and there were still similar number of claims being rejected.

The figures are taken from the same reports as before. Up to 2004 claims were recorded by “main jurisdiction” and “other jurisdiction”, depending on what the main element of the claim was assessed as being. I have combined the main jurisdiction and other jurisdiction elements to assess the total number of unfair dismissal claims (the figure in yesterday’s post for 1998 covered only the “main juridiction” claims). Also up to 2004 unfair dismissal claims relating to a transfer of an undertaking and health and safety were recorded separately, but have been combined in my figures. Each year stretches from 1 April to 31 March, so the reference to, say, 2000 actually covers the year 1 April 2000 to 31 March 2001. The figures for 2011 are a projection based on the mean number of claims for the three quarters for which data is available. As before, any corrections or observations gratefully received in the comments.

There are many different ways of looking at employment tribunal statistics, but the most consistently available figures are for the number of applications lodged with the tribunal. For the purposes of these figures, a claim that an individual’s dismissal was both discriminatory and unfair would count as one claim, and fifty individuals all bringing equal pay claims arising out of the same situation would count as fifty claims.

Here are the number of applications made from 1988 – 2011, including the trend line generated by Excel:

 It is difficult to know what, if any, conclusions can be drawn from this. There are many ups and downs in the figures, with notable peaks in 1995, 2000, 2007 and 2009. These are almost certainly down to massive multiple claims running chronologically from part-time worker pension claims to public sector equal pay claims and then airline working time claims. These huge multiple claims, brought by thousands of people at a time, would need to be stripped out of the statistics to show any reliable underlying trend. Even though there are spikes in those particular years, the multiple claims would have been brought in years either side of the spikes as well, so would distort figures for the neighbouring years too.

It is hard to strip these out of the claims so as to ascertain the rate of like-for-like increase. As at 2003 there were over 100,000 outstanding part time pension cases, and the subsequent equal pay and airline working time cases are likely to have been of that order.

Given the increase in the jurisdiction of the employment tribunals over these years it would be surprising if there was not an underlying increase in claims, but exactly how much is difficult to tell. The earliest year for which I have been able to find figures for the number of unfair dismissal claims brought is 1998/99, when 37,034 claims were registered, compared to 47,900 claims in 2010/11 – though there have been considerable ups and downs in the figures in between those two dates.

Any corrections to or observations on these figures are welcome in the comments.

[Notes: Each year stretches from 1 April to 31 March, so the figures for 2000 are for 1 April 2000 - 31 March 2001. The source material for these figures is House of Commons Research Paper 03/87, the Employment Tribunal Service annual reports for 2003-10 and the Tribunals Service statistics for 2010/11. The figures for 2011 are projected full year figures based on a mean of the three quarters for which statistics are available.]