Lord Ericht

About this case:

• Citation:
  [2022] CSOH 56
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Victoria Reid challenged a policy under which her application to join the Tribunal could not be progressed unless she was able to commit to two days of tribunal work per month. It was argued that the policy was unreasonable as she would lose her entitlement to Employment Support Allowance if she worked for more than one day per month.

The petition was heard by Lord Ericht in the Outer House of the Court of Session. Dailly, solicitor-advocate, appeared for the petitioner and McGuire, advocate, for the respondent. Webster QC appeared for the Advocate General as an interested party.

Context of review

On 14 June 2021 the petitioner emailed the MHTS recruitment mailbox to express interest in applying for a role with the Tribunal as a general member. After corresponding with representatives of the respondents who told her that her application could not be progressed further without having two days of availability per month and that the Scottish Government could not provide specific advice as to whether the MHTS would fall under the ESA’s “permitted work” scheme, she did not apply for the post.

Under the regulations for English and UK tribunals, there is an exemption allowing for members to work for one day a week while in receipt of ESA. However, this exemption did not apply to Scottish Tribunals, and worked in tandem with an earnings limit of 16 times the national minimum wage. In March 2022 there was correspondence between UK and Scottish Ministers concerning bringing this exemption north of the border, however at the time of the bringing of the petition no legal developments had come from this.

It was submitted for the petitioner that a decision required to be made on the basis of the current law even in the context of a review by the UK Government. As it stood, the two-day policy indirectly discriminated against the petitioner contrary to sections 19, 20, and 29 of the Equality Act 2010. Additionally, the petition raised issues of Wednesbury irrationality which could only be addressed in a judicial review and not by the Employment Tribunal.

Counsel for the respondents submitted that the petitioner had an alternative remedy available in commencing Employment Tribunal proceedings in relation to the Equality Act case. In any event, she had not suffered indirect discrimination as she had not established that she was a disabled person under section 6 of the Act nor that the minimum commitment of availability for two days per month put her at a particular disadvantage when compared to persons who were not disabled.

Foundational misconception

In his decision, Lord Ericht said of the difference in the Scottish tribunal system: “The distinction between the members of English/UK and Scottish tribunals is one which may be difficult to justify. ESA applies throughout the UK, and it is difficult to see why a member of an English or UK Tribunal should be entitled to an exemption for one day’s (or two half day’s) work but a member of the equivalent Scottish tribunal should not be.”

He continued: “The difficulty may be particularly acute in respect of the Mental Health Tribunal for Scotland as there is a legal requirement for the appointment of members who have experience of mental disorder or of using services provided in relation to mental disorder.”

Noting that the DWP had a discretion to average out weekly income in certain circumstances, Lord Ericht said: “It may be that a member of the MHTS would be able to sit for two days per week or month without losing ESA. The averaging need not be over a set period of five weeks, but may be over another period which in the particular case of the claimant, enables the claimant’s average weekly income to be determined more accurately. It is premature to speculate to what the appropriate period would be in respect of a particular member of the MHTS as this will depend on how frequently that person sits as a member.”

He concluded: “It is not the case, as the petitioner contends, that ESA is available when sitting as a member of the MHTS for one day but is lost by sitting for a second day. Entitlement to ESA for the week is lost by sitting as a member for just one day. Sitting for a second or further days that week makes no difference: ESA is already lost. That misconception is the foundation for all the challenges to the two days policy, whether they are formulated as Wednesbury unreasonableness or statutory breaches. That misconception goes to the heart of all the remedies which the petitioner seeks.”

The petition was therefore dismissed.