England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE MOSES)

		Royal Courts of Justice Strand London, WC2
		4 November 2005

1. LORD JUSTICE KEENE: This appeal from Moses J in the Administrative Court raises a short but important issue as to the extent of the jurisdiction of an employment tribunal when faced with a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations") and it is contended before the tribunal that the claim or part of it is barred by Regulation 13 (2). The Regulations were made in order to implement Directive 97/81/EC ("the Directive"), the directive concerning the framework agreement on part-time work.
2. It is only necessary to set out certain parts of the Regulations. Regulation 5 provides at paragraphs (1) and (2) as follows:

"(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if -

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds."

Regulation 8 (1) states that, subject to an exception irrelevant for present purposes -

"A worker may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by Regulation 5."

Regulation 13 deals with the armed forces. By Regulation 13 (1) it is provided that -

"These Regulations shall have effect in relation -

(a) subject to paragraphs (2) and (3) ..... to service as a member of the armed forces ..... "

3. It is Regulation 13 (2) which is at the heart of this case. It states:

"(2) These Regulations shall not have effect in relation to service as a member of the reserve forces in so far as that service consists in undertaking training obligations -

(a) under section 38, 40 or 41 of the Reserve Forces Act 1980.

(b) under section 22 of the Reserve Forces Act 1996.

(c) pursuant to regulations made under section 4 of the Reserve Forces Act 1996,

or consists in undertaking voluntary training or duties under section 27 of the Reserve Forces Act 1996."

4. The facts which have given rise to this appeal can be stated quite shortly. The appellant is a major in the Territorial Army. He complains that he has been denied a pension by the respondent in respect of his service in the Territorial Army. He consequently brought a claim under the Regulations in an employment tribunal asserting that the denial of his right to a pension infringed those Regulations. The respondent contended before the tribunal that the appellant's service was of a kind excluded by Regulation 13 (2) because insofar as his service exceeded the 16 days training a year required of him under Section 22 of the Reserve Forces Act 1996, it was with his consent or was done on a voluntary basis and so fell within Section 22 (1) (b) or Section 27 of that Act. In other words, it was argued that his service fell within Regulation 13 (2) (b) or the words at the end of Regulation 13 (2) referring to Section 27 of the 1996 Act.
5. After hearing evidence, the tribunal found as a fact that Major Manson had volunteered for or consented to all the training days in excess of the requirement of 16 days. It is worth quoting the relevant finding in paragraph 16 of the extended reasons:

"While it is commendable that the applicant considers himself obligated to attend training courses which he has said he will attend it is clear to us that he has volunteered or consented to those training days in excess of those mandatory in camp days and that as such any such days are included in the definitions of Section 22 (1) (b) Reserve Forces Act or Section 27 Reserve Forces Act."

The tribunal then concluded, in perhaps unfortunate language, as follows:

"It is therefore a unanimous decision that the Tribunal does not have jurisdiction to hear the applicant's claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 by virtue of Regulation 13."

6. I say that the language was perhaps unfortunate because it is clear that the tribunal was making a decision that the appellant's service was in fact caught by Regulation 13 (2) and could not therefore give rise to a complaint under Regulation 5. It patently did regard itself as having jurisdiction to decide whether Regulation 13 (2) applied on the facts of the case.
7. In the course of the hearing the tribunal had been asked by the appellant to rule that the Regulations did not properly implement the Directive. The tribunal decided that this issue was being raised too late in the proceedings and it declined to consider his argument to that effect. The appellant then appealed to the Employment Appeal Tribunal (the EAT") which dealt in its decision principally with whether he fell within the terms of Regulation 13 (2) on the facts. But Major Manson also argued that the Regulations were ultra vires because of the exclusion of members of the armed forces from their provisions. This argument seems to have been advanced on the basis that the Regulations were, in that respect, incompatible with the Directive. The EAT, presided over by Wall J (as he then was), said of this contention:

"We would need a great deal of persuading (indeed we think express wording in the Directive itself would be required) to be satisfied that Parliament when making the Part Time Regulations and in conformity with the Brussels Directive was in some way acting outside its powers or unlawfully. We take the view, as a matter of principle, that it is likely in any event that any Member State seeking to implement the Brussels Directive must have power to exclude categories of activities for particular persons in relation to the armed forces if it so wishes. Thus any challenge to that process in our judgment is not properly addressed to this tribunal but needs to be addressed to Parliament or by way of judicial review."

8. In fact, the appellant had by that time already launched judicial review proceedings in the High Court, on the ground that the Regulations were incompatible with the Directive. He sought to assert that he enjoyed rights under the Directive, which it was said was, to this extent at least, directly effective. Various issues fell to be determined by the time the matter came before Moses J, some of which are no longer live. One of the issues was whether this was a public law matter suitable for judicial review, or a private law claim. In arguing that the judicial review process was appropriate, it was submitted on behalf of Major Manson that the employment tribunal had no jurisdiction to determine whether or not Regulation 13 (2) was compatible with the Directive.
9. Moses J said this in the course of his judgment:

"This analysis in the instant case has been bedevilled by confusion engendered by the terms of the decision in the Employment Tribunal and in the EAT. The Regulation confers jurisdiction by Regulation 8 on the Employment Tribunal to determine a worker's rights under the Part-Time Workers Regulations. A worker is required to present his complaint under the Regulations to Employment Tribunal. If service as a member of the reserve forces falls within Regulation 13 (2), then the claimant, bringing his claim before the Employment Tribunal, has no rights under the Regulations. All that the Employment Tribunal decided at the adjourned hearing on 7 January 2002 was that the claimant's service came within Regulation 13 (2), and thus he could not assert any of the rights conferred by Regulation. The claimant's claim under the Regulations was properly brought to the Employment Tribunal. It was properly determined by that Employment Tribunal. No other forum was appropriate.

Once the Employment Tribunal reached the conclusion that the claimant's service fell outwith the Regulations, his claim did not by some strange alchemy cease to be an assertion of private law rights against his employer. His remedy was to pursue that private law claim to the EAT. That he did. Once his appeal there failed, his claim did not cease to be a private law claim. His approach is not altered one whit by the fact that he sought, in the alternative to his argument that his service fell outside Regulation 13 (2), to argue that Regulation 13 (2) was itself incompatible with the Part-Time Work Directive, nor that he sought to assert rights under what he alleged to be that directly effective Directive.

Unfortunately, the EAT was not referred to the obligations of the court under Article 10 of the Treaty, or to authority which amply demonstrates the obligation of the Employment Tribunal to apply not only domestic law but also community law. In Biggs v Somerset County Council [1996] ICR 811, the President of the Employment Appeal Tribunal said:

'Thus in the exercise of its statutory jurisdiction, the industrial tribunal is bound to apply and enforce relevant Community law, and disapply an offending provision of United Kingdom domestic legislation to the extent that it is incompatible with Community law, in order to give effect to its obligation to safeguard enforceable Community rights.'

By virtue of Regulation 8, the Employment Tribunal was designated the appropriate forum for consideration of all rights asserted under the Directive and the Part-Time Workers Regulations. If the Directive is of direct effect and Regulation 13 (2) incompatible with it, it was the obligation of the Employment Tribunal, or the EAT on appeal, to disapply 13 (2). Marshall V Southampton and South West Area Health Authority (qv supra) demonstrated that principle back in 1986."

Moses J held that Major Manson was seeking to assert a private law claim against his employer.

10. In his grounds of appeal to this court the appellant sought to raise a number of matters. However permission to appeal was granted at an oral hearing by Buxton and Neuberger LJJ on one issue only. The point was put by Buxton LJ in the following terms:

"If, but only if, it is the case that Regulation 13 (2) disapplies the Regulations entirely in a case of service as a member of the reserve forces, then Regulation 5 is itself disapplied and the tribunal would not in fact have jurisdiction to continue with a claim brought under that Regulation, and therefore could not enter into the process, and in the process of that, disapply Regulation 13 (2)."

His Lordship noted that, if the appellant's contention were sound, the court would have to consider what remedy should be made available to the appellant, it being suggested on his behalf that these judicial proceedings should be continued by way of writ.

11. On the jurisdiction issue it is submitted before us by Mr Bowers QC, on behalf of the appellant, that an employment tribunal had no jurisdiction to hear his claim. It is said that the opening words of Regulation 13 (2), namely -

"These Regulations shall not have effect in relation to service" etc

are clear and have the effect contended for. It is accepted by the appellant that the employment tribunal did have jurisdiction to make (I quote from the skeleton argument) "some minimal findings of fact" to determine whether Regulation 13 (2) applied to the case, but once it had found that the facts brought it within that provision, it had no further jurisdiction in the matter. In particular it could not go on to consider whether that provision should be disapplied because of a conflict with European law.

12. Mr Bowers emphasises that an employment tribunal's jurisdiction is purely statutory: see Section 2 of the Employment Tribunals Act 1996. It has no inherent jurisdiction, and so it cannot deal with freestanding claims based on European law. Reliance is placed on the decision of this court in Biggs v Somerset County Council [1996] ICR 364, where the judgment of the Employment Appeal Tribunal given by Mummery J was approved. That decision does indeed confirm that employment tribunals have no inherent jurisdiction "separate and apart from that conferred by domestic statutes": (see [1995] ICR 811 at 827).
13. It is acknowledged on behalf of the appellant that, once a tribunal is exercising its statutory jurisdiction, it is bound to apply European Community law, which indeed overrides incompatible provisions of domestic law. Thus, if this appellant's claim was based on domestic legislation over which the employment tribunal had been accorded jurisdiction by a United Kingdom statute or regulation, Mr Bowers accepts that the tribunal must apply Community law even if this means disapplying certain provisions in the domestic legislation. But he contends that in the present case the tribunal had no jurisdiction in respect of the appellant's substantive claim that he had been discriminated against. Regulation 13 (2) excluded that. It could only disapply a provision which was within its jurisdiction. Here, what Major Manson was in reality bringing was a claim based on a freestanding right, even though he initially thought he was within the Regulations. His cause of action, it is said, is not one known to an employment tribunal.
14. Mr Bowers has taken us today in the course of his argument to a number of other authorities, in some of which a tribunal has been held to have jurisdiction to determine whether a qualification or threshold provision for the assertion of a claim has been met. But he seeks to distinguish these "threshold cases", as he describes them, from provisions which relate to jurisdiction. Consequently, it is said, an employment tribunal in a case such as the present has to assume that Regulation 13 (2) is lawful, at least until it is challenged. If its lawfulness is challenged, the tribunal cannot consider whether or not that provision is lawful under European law.
15. If these contentions are right, the next step in the argument from the appellant is that a remedy must be found for him in some other forum, probably by way of judicial review or failing that by allowing the claim to continue as a private law claim pursuant to CPR 54.20. That aspect of the case only arises, however, if the appellant is right in his argument that the employment tribunal was not empowered to disapply Regulation 13 (2) because of a conflict with the Directive.
16. I propose, therefore, to deal first with that central argument. It is worth reminding oneself of the essential features of the case of Biggs on which heavy reliance is placed by the appellant. Mrs Biggs had been employed as a part-time teacher until her dismissal in 1976. At that time, an employee who worked less than 21 hours per week, which was her situation, had no right not to be unfairly dismissed. In due course, following the decision in R v Secretary of State for Employment ex p Equal Opportunities Commission [1995] 1 AC 1, Mrs Biggs presented a complaint of unfair dismissal to a tribunal, but did so many many years after the domestic law time limit of three months had expired.
17. She raised a number of arguments before the EAT, including the argument that the three months time limit was incompatible with European law. She also relied upon her rights under Article 119 of the EEC Treaty which had direct effect. Indeed, her counsel expressly submitted before the EAT that:

"The applicant's case is not brought under United Kingdom domestic law. It is brought in reliance upon or under Article 119."

(See page 824, paragraph 2). It was stressed that Article 119 contained no provision as to time limits on claims.

18. It was in that context that Mummery J made the point about the limits on a tribunal's jurisdiction. At page 830, he said:

"In our view, an industrial tribunal only has jurisdiction to apply and enforce Community law in the context of a claim brought under one of the statutes, such as the Act of 1978, the Equal Pay Act 1970 or the Sex Discrimination Act 1975 which confer jurisdiction on an industrial tribunal. An industrial tribunal does not have any inherent or general jurisdiction to hear cases under Community law (or any other law). Its jurisdiction is entirely derived from specific domestic statutes. It does not derive its jurisdiction from the European Communities Act 1972, as such, though it is bound to apply relevant Community law to cases arising within its jurisdiction. With respect, we are of the view that an industrial tribunal has no jurisdiction to entertain claims for infringement of 'freestanding' rights outside the scope of the specific statutes which confer and define jurisdiction."

But what he also made clear was that, when exercising its statutory jurisdiction, a tribunal was obliged to apply European Community law because of the provisions of the European Communities Act 1972, Section 2. He stated at page 828:

"Thus, in the exercise of its statutory jurisdiction, the industrial tribunal is bound to apply and enforce relevant Community law, and disapply an offending provision of United Kingdom domestic legislation to the extent that it is incompatible with Community law, in order to give effect to its obligation to safeguard enforceable Community rights."

It was held by the EAT that time limits on presenting complaints of unfair dismissal were not incompatible with Community law. But if Mrs Biggs had presented her complaint in time in 1976, the tribunal would have had jurisdiction to disapply the 21 hours per week threshold set out in the domestic legislation. In a passage which is highly relevant to the present appeal, Mummery J said this at page 828, paragraph 5:

"In 1976 the industrial tribunal had jurisdiction at the suit of those with directly effective rights to disapply the qualifying threshold conditions for weekly hours in the Act of 1978 and previous legislation incompatible with Community law."

19. It is crystal clear that, when Mummery J was dealing with the limits on the tribunal's jurisdiction, he was concerned to emphasise that claims based on "freestanding" rights derived from European law could not be entertained by the tribunal. He was not referring to the ability of such a tribunal to disapply a restriction or exclusion found in domestic law on a claim based on a domestic law right if the restriction or exclusion was found to be incompatible with European law. As his reference to the weekly hours restriction shows, he regarded the tribunal as having jurisdiction to disapply that if that was necessary.
20. I have quoted the EAT decision in Biggs extensively because Mummery J's judgment was given firm endorsement when the case came on appeal to this court (see 1996 ICR at page 370 B). This court held that a separate basis of claim founded on Article 119 would not be within the tribunal's jurisdiction. But the court also proceeded on the basis that the issue of the compatibility of the three-month time limit for claims, contained in domestic law, with European Community law was something within the jurisdiction of an industrial tribunal and of the EAT and the Court of Appeal when hearing an appeal from such a tribunal. It is to be noted that both the EAT and the Court of Appeal actually decided that issue of compatibility (see page 828, paragraph 7 (EAT), and page 376 A (Court of Appeal)). It follows that they regarded it as open to them to do so in jurisdictional terms.
21. In the end Mr Bowers' argument seems to come down to an assertion that the wording of Regulation 13 (2) robs the tribunal of jurisdiction to consider whether or not that restriction should be disapplied for reasons of incompatibility with European law. In other words, while the tribunal is entitled to consider whether Regulation 13 (2) applies because of the facts of the case, it cannot consider whether the same regulation should be disapplied. That would seem to be an inherently surprising proposition. I cannot see that the wording of Regulation of 13 (2) has that effect. For one thing, it does not purport, in Buxton LJ's words (ante), to disapply the Regulations "entirely in a case of service as a member of the reserve forces". It expressly does so only "in so far as that service consists in undertaking" certain types of training obligations. The facts of a particular case may show that the claimant's service falls partly, but only partly, within the exclusionary terms of Regulation 13 (2). It follows that when the draftsman used the phrase "these Regulations shall not have effect in relation to", the intent as a matter of domestic law was that the specified types of service should not be taken into account for the purposes of a Regulation 8 claim. But the Regulations themselves are clearly being applied when a tribunal decides whether the facts bring the case wholly or partly within Regulation 13 (2).
22. The reality is that employment tribunals are given by statute jurisdiction over complaints that an employer has infringed a part-time worker's right not to be treated less favourably than a comparable full-time worker. That is the effect of Regulation 8 (1). In the same way, in Biggs the tribunal had jurisdiction over claims for unfair dismissal. In both situations the tribunal has, in my judgment, jurisdiction to disapply a restriction in domestic law on the right relied on if that restriction is incompatible with Community law. The appellant in the present case was not making a claim based on a "freestanding" right founded only in Community law. His claim was based on a right recognised in domestic law but subject to a restriction embodied in domestic law. It was open to the tribunal to decide whether or not that restriction should be disapplied because of Community law.
23. Indeed, in my judgment, no other course of action was open to it. Community law is part of the law of this country. When an issue is raised in respect of Regulation 13 (2), the tribunal will have to find whether certain facts exist. Mr Bowers accepts that it is entitled to do that. But it only finds facts as part of that process because those facts have a legal significance. Their significance is derived from the law. On the appellant's argument, the law, the legal test, is to be found in the regulatory words in Regulation 13 (2). That is indeed part of the legal context. But it is not the whole of the law that is relevant. Community law is potentially relevant, and I cannot accept that the employment tribunal is entitled to close its eyes to Community law and have regard only to this domestic law regulation. If it finds itself considering the application of Regulation 13 (2) and an issue is raised as to the lawfulness of that provision, it must deal with that issue.
24. I would only add that the practical difficulties which would arise from any other conclusion underline the correctness of the above analysis which also accords with Moses J's approach in his admirable judgment. The idea that an employment tribunal could properly decide on the facts that Regulation 13 (2) applied, but that the issue of whether it should be disapplied should then go off to another forum by way of judicial review or proceedings started by writ, only has to be stated for the problems to become manifest. One should be slow to adopt an interpretation which gives rise to such a cumbersome and impractical mechanism. In my judgment it does not reflect the proper legal analysis of the situation. The employment tribunal here had jurisdiction to decide, if appropriate, that Regulation 13 (2) should be disapplied. This court is not called upon to decide whether or not it should be disapplied.
25. In the light of my conclusion on this first issue, it is unnecessary to address any of the other matters raised on this appeal. I would dismiss this appeal.
26. LORD JUSTICE SCOTT BAKER: I agree.
27. LORD JUSTICE RICHARDS: I also agree.

Order: Appeal dismissed