PART-TIME WORKER

Manson v Ministry of Defence: [2005] EWCA Civ 1678

CA: Keene, Scott Baker and Richards LJJ: 4 November 2005

The claimant, a major in the Territorial Army, brought a claim against the Ministry of Defence in an employment tribunal, under regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, contending that the denial of his right to a pension infringed regulation 5. An employment tribunal found that his right as a part-time worker not to be treated less favourably than full-time personnel was excluded by regulation 13(2) of the Regulations, because in so far as his service as a member of the reserve forces exceeded the 16 days' annual training required of him it was undertaken with his consent or on a voluntary basis. The tribunal refused to consider a submission by the claimant that the Regulations were ultra vires because of the exclusion of members of the reserve forces, on the ground that the issue had been raised too late. The claimant commenced judicial review proceedings, contending that the Regulations were incompatible with Council Directive 97/81/EC, which they were intended to implement. The judge refused to grant judicial review on the ground that the claimant was seeking to assert a private law claim against his employer and that, by virtue of regulation 8 of the Regulations, the employment tribunal was the appropriate forum for consideration of all rights asserted under the Regulations and the Directive.

The claimant appealed on the ground that the employment tribunal had no jurisdiction to hear his claim because regulation 13(2) put it outwith the Regulations, so that that tribunal was unable to consider whether the provision should be disapplied because of a conflict with Community law.

The Court of Appeal held:
Regulation 13(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 did not purport to disapply the Regulations entirely in the case of service as a member of the reserve forces but only in so far as that service consisted in undertaking certain types of training obligations. Under regulation 8(1) the employment tribunal had jurisdiction over complaints that an employer had infringed a part-time worker's right not to be treated less favourably than a comparable full-time worker, and that jurisdiction included jurisdiction to disapply a restriction on that right in domestic law if the restriction was incompatible with Community law. The claimant's claim was not based on any freestanding right founded only in Community law but on a right recognised in domestic law which was subject to a restriction embodied in that law, and, accordingly, it was open to the employment tribunal to decide whether or not that restriction should be disapplied because of Community law.

The appeal was dismissed.

Appearances: John Bowers QC and Philippa Watson (Simpson Miller) for the claimant; Nicholas Paines QC and Akhlaq Choudhury (Treasury Solicitor) for the defendant.