Employment

Extending Time under the Just and Equitable Jurisdiction: Dowokpor v Ministry of Justice UKEAT/0156/17/LA, 23 March 2018

The EAT (Slade J) held the Employment Tribunal erred in deciding that it was not just and equitable to extend the three-month time for bringing a claim under the Part-time Works (Prevention of Less Favourable) Treatment Regulations 2000.

The Claimant was a part-time, fee-paid judge in what is now called the Social Entitlement Chamber of the First-Tier Tribunal, where he heard Child Support, Disability and Incapacity Appeals. He retired in 2007. In 2011 he was alerted to the fee-paid judicial pensions litigation in O’Brien v Ministry of Justice (‘the O’Brien litigation’). Having received unfavourable advice from his solicitors, who told him that his claim was out of time (but who did not refer him to the just and equitable jurisdiction), the Claimant did not present a claim. In 2013, having received more favourable advice from his solicitors, the Claimant commenced proceedings.

The Employment Tribunal (‘ET’), relying in large part on its previous judgment in Miller v Ministry of Justice, dismissed his application for an extension of time.

The EAT allowed all three grounds of appeal, holding, firstly, that the ET erred in failing to consider on the facts whether the Claimant’s ignorance of his right as a part-time judge to bring a claim for a pro rata pension given to full-time judge until he was alerted to the O’Brien litigation, was reasonable and what weight should be given to that ignorance. Further, the EAT held that the ET, who took the view that the Claimant’s solicitors had not been negligent, erred by not taking into account that their advice was unqualified and contained no reference to a possible extension of time. The EAT had failed to consider whether the solicitors’ unqualified advice provided a reasonable excuse for the Claimant not to bring proceedings until his solicitors changed their position. Finally, the EAT held that the ET erred in relying on Miller v Ministry Justice, when there were material differences between the Claimant’s case and the cases considered in Miller.

The matter was remitted to a differently constituted Employment Tribunal.

Barbara Zeitler, instructed by the Bar Pro Bono Unit, represented Mr Dowokpor

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