England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		17th February 2005

MR JUSTICE MOSES:

Introduction

1. The claimant is a Major in the Territorial Army. He complains that he has been denied a pension in respect of his service. He made that contention in 2001 before an Employment Tribunal. He contended that the denial of his right to a pension infringed the Part-time Worker's (Prevention of Less Favourable Treatment) Regulations 2000 ("the Part-time Workers Regulations"). When that claim failed he contended that those Regulations were incompatible with the Council Directive containing the Framework Agreement on Part-time work 97/81/EC ("the Directive"). This Directive the Regulations purported to implement. He launched an application by way of judicial review after dismissal of his claim by the Employment Tribunal, but before his appeal to the Employment Appeal Tribunal had been heard. Following refusal of permission on the papers in December 2002, and an adjournment of the renewed application for permission in January 2003, permission to move for judicial review in respect of one issue was granted in September 2004. Since then the pace has quickened. The full application was heard before me in February 2005.

The Issues

2. The following issues have arisen: (1) whether the claimant is asserting a private or public law right, (2) whether the Directive is of direct effect, (3) whether Regulation 13(2) of the Part-time Workers Regulations, which purports to exclude a member of the Territorial Army from the application of those Regulations, is compatible with the Directive.

The Regulations

3. By Regulation 1, "worker" means:

"... an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under --

"(a) a contract of employment; or

"(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual."

4. By Regulation 2(1):

"A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker.

"(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is not identifiable as a full-time worker."

5. By Regulation 5(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.

"(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate."

6. By Regulation 8(1):

"Subject to regulation 7(5), a worker may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation 5 or 7(2)."

7. By Regulation 13:

"(1) These Regulations, shall have effect in relation --

"(a) subject to paragraphs (2) and (3) and apart from regulation 7(1), to service as a member of the armed forces, and

"(b) to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996[5].

"(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[6]

"(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."

8. The Regulations were designed to implement Council Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC of 15th December 1997. By article 2(1):

"Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 20th January 2000, or shall ensure that, by that date at the latest, social partners have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof."

9. By Council Directive 98/23/EC of 7th April 1998, Article 2 was made to apply to the United Kingdom, Great Britain and Northern Ireland with effect from 7th April 2000, the Government having changed.
10. By the Framework Agreement brought into effect by those Directives, clause 2, headed "Scope":

"1. This Agreement applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State.

"2. Member States, after consultation with the social partners in accordance with national law, collective agreements or practice, and/or the social partners at the appropriate level in conformity with national industrial relations practice may, for objective reasons, exclude wholly or partly from the terms of this Agreement part-time workers who work on a casual basis. Such exclusions should be reviewed periodically to establish if the objective reasons for making them remain valid."

11. By clause 4, "Principle of Non-discrimination":

"1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.

"2. Where appropriate, the principle of pro rata temporis shall apply.

"3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice.

"4. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to go access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in clause 4.1."

The Facts

12. The claimant in enlisted in the Territorial Army in October 1970 and was commissioned on 15th February 1973. He therefore has some 34 and a half years' service. The Territorial Army is part of the volunteer reserve forces and is governed by the Reserve Forces Act 1980, the Reserve Forces Act 1996 and the Territorial Army Regulations 1978. It consists of civilians who accept an annual training commitment and a liability to be called up for permanent service. Those civilians may undertake further voluntary commitments of service.
13. By virtue of Schedule 9 of the 1996 Act, this claimant is a transitional member who may opt to be subject to the minimum period for training under the 1980 Act. The minimum requirement of training is provided by section 38 to be 15 days. Pursuant to section 27 of the 1996 Act, to which it is agreed the claimant is also subject, he also undertook voluntary training. He appears to have served well in excess of the minimum requirement over the years. I was told that he had to date served some 1,142 days.
14. For a number of years the claimant has been concerned that he does not receive a pension from the army. By letter dated 31st March 2001, he sought redress by way of complaint, to his commanding officer, pursuant to section 180 of the Army Act 1955. He made a number of complaints, particularly about promotion, but one of the complaints concerned his failure to receive a pension. He said "I do not receive a pension, holiday or sick pay from the Army, even though under European legislation part-time employees are entitled to all of them."
15. Before any reply had been received, the claimant made an application to an Employment Tribunal on 10th April 2001. He made a number of claims, including an allegation of a breach of the Part-time Workers Regulations. His commanding officer considered his complaint. The claimant was notified of rejection of that complaint by letters dated 15th May and 11th July 2001. There was a dispute as to whether his claim had been properly considered and as to whether it was out of time. It is unnecessary for the purposes of this judgment to relate the details.
16. On 21st September 2001 at a hearing at which the claimant was unrepresented, the Employment Tribunal dismissed all his claims save in relation to his complaint under the Part-time Workers Regulations. That claim was adjourned. On 7th January 2002, at the adjourned hearing, the Employment Tribunal rejected the claim that he had a right to a pension pursuant to the Part-time Workers Regulations. In the light of the submissions made in this case, particularly in relation to the jurisdiction of this court, it is necessary to relate the nature of the decision.
17. The issue before the Employment Tribunal turned on whether the claimant's service fell within sections 22 and 27 of the 1996 Act, and accordingly within Regulation 13(2) of the Regulations. Section 22 of the 1996 Act reads as follows:

"22(1) A member of a reserve force may, in accordance with orders and regulations under section 4, be required by virtue of this section, in any year, to train in the United Kingdom or elsewhere for --

"(a) one or more periods not exceeding 16 days in aggregate; and

"(b) such other periods as may be prescribed, none of which shall exceed 36 hours without the consent of the person concerned; and such a person may, while undergoing a period of training under this section be attached to and trained with any body of Her Majesty's forces."

18. Nothing turns on the fact that the Act refers to 16 days, whereas before me it was contended that the claimant was only required to undertake 15 days.
19. Section 27 provides:

"(1) Nothing in this Part prevents a member of a reserved force --

"(a) undertaking any voluntary training in the United Kingdom or elsewhere that is made available to him as a member of that force;

"(b) undertaking any voluntary training or performing other voluntary duties in the United Kingdom or elsewhere, being training or duties undertaken or performed at his own request or following a request made to him by or on behalf of his commanding officer.

"(2) Orders or regulations under section 4 may make provisions as to the provision and use of training facilities for members of reserve forces and otherwise in connection with the undertaking of training or other duties as mentioned in subsection (1) of this section.

"(3) A member of a reserve force shall be subject to service law while performing voluntary duties or training as mentioned in subsection (1)."

20. The Tribunal decided that the service which the applicant performed in training did fall within section 22 and section 27. The issue appears to have been a factual issue as to whether he was required to train additional days over and above the 16 days, so that, in effect, the training was not done with his consent or undertaken voluntarily, and thus fell outwith the two sections to which I have referred (see paragraph 4 of the decision).
21. The Tribunal heard evidence from another officer and from the claimant. It concluded that all the training was undertaken voluntarily, whether pursuant to section 22 or to section 27. It concluded, therefore, that by virtue of Regulation 13(2), his service fell outWith the provisions of the Part-time Workers Regulations. The record of the submissions shows that the claimant attempted to raise the point he now seeks to raise as to the compatibility of the Regulations with the Directive. The Tribunal ruled that it was too late for him to do so and that, in any event, his submissions were unclear. It refused to deal with the point.
22. On 15th February 2002 the claimant served notice of appeal to the Employment Appeal Tribunal. It is important to observe that on 21st October 2002, before the appeal was heard, he launched a claim for judicial review, repeating the claims which had been dismissed by the Employment Tribunal. On 30th October 2002, the Employment Appeal Tribunal at a preliminary hearing dismissed the claimant's appeal, upholding the decision of the Employment Tribunal as to the nature of the services that he undertook. But it recorded his point as to compatibility and described it as a submission that the Regulations were ultra vires.
23. The judge, Wall J as he then was, said:

"17 ... 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 or 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."

24. No appeal was brought against that decision, nor can the judge be said to have been responsible for the launch of judicial review proceedings which preceded this judgment. I shall have to consider, however, whether I agree that the challenge to what the judge described as "that process" could not be addressed to the Tribunal or to the Employment Appeal Tribunal.
25. On 2nd December 2002 a judge refused permission to the claimant to apply for judicial review on the papers. As I have said, on 24th January 2003, the renewed oral application was adjourned. On 8th May 2003 the claimant made a second application for redress of his complaint to the military authorities on the grounds that they had failed to refer his matter to a higher authority. On 17th June 2003, the Ministry of Defence rejected his complaint on the basis that the procedures do not permit an appeal against a decision that a redress of complaint is brought out of time. The claimant was informed that any appeal against that decision should be by way of judicial review. It is clear that the defendant was referring to its view that there was no appeal.

The Jurisdiction of this Court

26. The defendant contends that the issue in the instant case is a private law matter, not amenable to judicial review. The proper forum was, and is, since it is said that the claimant may continue to complain as to the failure to provide a pension, the Employment Tribunal.
27. The claimant contends that this court has jurisdiction for three reasons. Firstly, the Employment Tribunal has no jurisdiction by virtue of Regulation 8. As it has already ruled, the claimant cannot seek redress in the Employment Tribunal because the Regulations have no application. Secondly, the compatibility of the Part-time Workers Regulations with the Directive is a suitable issue for this court. Thirdly, the issue was not decided by the Employment Tribunal or the EAT. The EAT advised that the claimant could only seek a remedy by way of judicial review. Absent relief by way of judicial review, the claimant will have no means of vindicating his rights under community law.
28. In order to determine whether any issue of public law arises, it is necessary to analyse the nature of the claim. The claimant is seeking to assert rights, which he alleges are directly effective, conferred by Council Directive 97/81, as amended by 98/23. The essence of his claim is that Regulation 13(2), which deprives the Regulations of effect in relation to his service as a member of the Territorial Army, is incompatible with the Directive. But the rights, which he asserts, are claims against his employer, the Ministry of Defence. His claim arises out of his employment, or more accurately his service relationship, with the Ministry of Defence. It relates to pay and conditions of service. In those circumstances it seems clear to me that his is a private law claim. His case is no different from a claim under the Equal Pay Directive or the Equal Treatment Directive, both of which would, beyond argument, be properly categorised as private law claims; see for example Marshall v Southampton and South West Area Health Authority [1986] ICR 335, a reference by the Court of Appeal from an appeal to the EAT.
29. 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 7th 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.
30. Once the Employment Tribunal reached the conclusion that the claimant's service fell out with 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.
31. 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.
32. 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."

33. 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 (q.v. supra) demonstrated that principle back in 1986.
34. Ms Watson, on behalf of the claimant, sought to resist the contention that the claim was a matter of private law by drawing a distinction between a challenge to his terms of service and a complaint that, under his terms of service, his rights were infringed. This distinction was based on dicta of Lord Donaldson MR in R v East Berkshire Health Authority ex p Walsh [1985] QBR 152. In that case the Master of the Rolls suggested that if the complaint had been that the terms of service were different from the conditions of service approved by the Secretary of State following negotiations with the Whitley Council, then the claimant would have had a remedy by way of judicial review.
35. The distinction drawn by the Master of the Rolls does not assist the claimant. He is not seeking to quash the Part-time Workers Regulations. He has not brought proceedings against the Secretary of State or the Department of Trade and Industry. He is merely relying on rights conferred by the Regulations as construed in a manner compatible with the Directive. His argument seeking to disapply Regulation 13(2) is merely a step in obtaining vindication of his private law rights.
36. Nor did Ms Watson gain any greater assistance from her reference to McLaren v The Home Office [1990] IRLR 338. Woolf LJ, as he then was, referred in that case to the opportunity of an employee to challenge, by way of judicial review, disciplinary proceedings of a disciplinary body established by prerogative or statute (see paragraph 39). The claimant is not seeking to challenge any such decision.
37. The proposition that this court is the appropriate forum for determining rights under the Part-time Workers Regulations or the Directive labours under a further difficulty. The dispute is not the arid argument as to whether the issues are correctly treated as being of public or private law, deprecated by Lord Woolf in Dennis Rye Ltd v Sheffield City Council [1998] 1 WLR 840, at page 848B. The disadvantage and impracticality of the shift of this case to the public arena is obvious. If the claimant was correct, once he had launched and failed in proceedings before the Employment Tribunal and the EAT, he could continue to assert his rights in this court. But what then? Determination of such rights as he can establish under the Directive would not, and could not, end with a declaration that Regulation 13(2) in his case was incompatible with the Directive. The claimant concedes as much in asking at the end of the skeleton argument for directions "for the most efficient determination of those remaining issues".
38. Determination of his rights under the Part-time Workers Regulations, read compatibly with the Directive, involves consideration of further issues. Those are issues of fact quite unsuitable for determination by the Administrative Court. For the purposes of Regulation 2, it would be necessary to identify a comparable full-time worker engaged under the same type of contract and performing the same, or similar, work. It would also be necessary to determine whether the claimant has been subjected to less favourable treatment, and, if so, whether that less favourable treatment is justified on objective grounds (see Regulation 5).
39. The decision of the Court of Appeal in relation to retained fire workers, Matthews v Kent Fire Authority [2005] ICR 84, amply demonstrates the need for a specialist Tribunal, the Employment Tribunal, to consider the complexity of such considerations. It would be absurd if the claimant could hop between the Employment Tribunal and the Administrative Court to determine his rights under the Regulations. The answer is that he is confined to the Employment Tribunal, which has ample jurisdiction to determine any issue arising under domestic or community legislation. In essence that is because he is asserting nothing more than a private law right.
40. I conclude that the claimant is seeking to establish a private law right. The appropriate forum for determining such a right is the Employment Tribunal. There is no decision which it is open to him to challenge by way of public law. It is idle to suggest that he is without a remedy to pursue his community law rights. He has been able to do so both before an Employment Tribunal and Mr Paines QC, on behalf of the Ministry of Defence, accepts that he can continue to do so in relation to any issue not already determined by the Employment Tribunal or the EAT.
41. Nor can the claimant rely upon references to judicial review by the EAT or the Ministry of Defence. As I have said, the MOD letter clearly referred to the contention that there was no right of appeal. In any event, both post-date the launch of the judicial review proceedings. Neither can those references confer jurisdiction on this court to determine a private law issue.
42. That is sufficient to dispose of this application, but both parties have asked me to determine the substantive issues as to whether the Directive is of direct effect and whether, if it is, Regulation 13(2) is compatible with the Directive. I shall do so, but I express some reluctance not merely attributable to judicial inertia.
43. As I have said, Mr Paines QC accepted that, since the claimant's service continues, it is open to him to launch fresh proceedings before the Employment Tribunal. If that is so, it would be unfortunate if such a Tribunal regarded itself bound by any decision of this court, which, for reasons I have given, regards this matter as one of private law over which it has no jurisdiction. Moreover, any of my conclusions are obiter.
44. I have been persuaded to consider the substantive issues for two reasons. It is unfortunate that, although the decision of the EAT did not lead the claimant to launch the judicial review decision, despite legal representatives on both sides, it was not apparently suggested he should appeal its decision, at least in relation to incompatibility. Further, the case has maundered on since then for so long that a decision of mine, if the Court of Appeal concluded that I was in error as to the appropriate forum, may assist in a speedier conclusion of all the issues.

Is the Directive of direct effect?

45. The Directive is only of direct effect if the provision on which an individual seeks to rely is unconditional and sufficiently precise. In relation to the principle of equality of treatment, the European Court of Justice said in Marshall at paragraph 55:

"It follows that Article 5 of Directive 76/207 does not confer on the Member States the right to limit the application of the principle of equality of treatment in its field of operation or to subject it to conditions and that that provision is sufficiently precise and unconditional to be capable of being relied upon by an individual before a national court in order to avoid the application of any national provision which does not conform to Article 5(1)."

46. If the Directive confers on a Member State a right to limit its operation or to subject it to conditions, that militates against direct effect. 97/81 gives legal effect to the Framework Agreement on part-time work concluded by the three bodies it names. The objective of the agreement is identified in the eleventh recital:

"(11) Whereas the signatory parties wished to conclude a Framework Agreement on part-time work setting out the general principles and minimum requirements for part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike;"

47. The 14th recital reads:

"Whereas the proper instrument for implementing the Framework Agreement is a Directive within the meaning of Article 189 of the Treaty; whereas it therefore binds the Member States as to the result to be achieved whilst leaving national authorities the choice of form and methods;"

48. Recital 16 reads:

"Whereas, with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves Members States free to define those terms in accordance with national law and practice, as is the case for other social policy Directives using similar terms, providing that the said definitions respect the content of the Framework Agreement."

49. The Framework Agreement (in its preamble) itself refers to the importance of an agreement between the parties. It reads:

"Without prejudice to the role of national courts and the Court of Justice, the parties to this agreement request that any matter relating to the interpretation of this agreement at European level should, in the first instance, be referred by the Commission to them for an opinion."

50. Under the heading, "General Considerations":

"6. Whereas this agreement refers back to Member States and Social Partners for the modalities of application of these general principles, minimum requirements and provisions, in order to take account of the situation in each Member State.

"7 ...

"8. Whereas the Social Partners are best placed to find solutions that correspond to the needs of both employers and workers and shall therefore be conferred a special role in the implementation and application of this agreement."

51. Clause 6 allows member states and social partners to introduce more favourable provisions, but emphasises that the agreement contains the minimum provisions to ensure equality of treatment with part-time workers.
52. Clause 4, which I have already recited, identifies the objective of the Directive and the Framework Agreement with clarity. It is as unconditional and as precise as similar non-discriminatory provisions as the Articles in the Equal Treatment Directive 76/207, see, for example Marshall v Southampton and South West Area Health Authority, Netherlands v FNV [1986] ECR 3855 and McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453.
53. There is no doubt that clause 4 is of sufficient precision to enable a national court to enforce its provisions. The mere fact that the manner of implementation is left to Member States cannot exclude the possibility of the Directive having direct effect, since Article 249 (ex189) expressly admits that possibility (see recital 14). The real difficulty, as I see it, is that the issue in the instant case is not as to the direct effect of clause 4, but rather of clause 2.2. The debate turns on whether Regulation 13(2) excludes from the operation of the Framework Agreement a class of part-time worker wider than that permitted by the Framework Agreement itself. In short, does Regulation 13(2) embrace part-time workers who are not casual workers?
54. Casual worker is not defined. It is, thus, a term left to Member States to define pursuant to recital 16 and to the Framework Agreement. But any definition must respect the content of the Agreement. In other words it must not diminish the minimum requirements of the Agreement. It must not so diminish the class of part-time worker as to deprive the Directive of any force. The fact that consultation is required and that Member States have the power to exclude from the operation of the agreement a discrete class of part-time worker, does not in my view deprive the Directive of direct effect.
55. The scope in relation to that particular class of part-time worker will vary from Member State to Member State. Some will choose to exclude that class, others will not, as the report by the Commission Services on the implementation of the Directive, dated 21st January 2003, demonstrates. The Framework Agreement has the consequence that the Directive will have different effects in different Member States according to different working situations. But that lack of harmony in its scope does not seem to me to deprive the Directive of direct effect.
56. The question of direct effect is rarely capable of easy resolution, but I conclude that it is open to an individual to rely upon clause 4 and contend that provisions excluding operation of that provision, in the instant case Regulation 13(2), are incompatible with clause 2(2) of the Framework Agreement, in that it provides for a class of exclusion wider than that permitted in clause 2(2).

Is Regulation 13(2) incompatible with clause 2(2) of the Framework Agreement?

57. Ms Watson advances three reasons why Regulation 13(2) is incompatible with the Directive. Firstly, she suggests that a member of the reserve forces cannot be described as a part-time worker on a casual basis. Secondly, she contends that there was no consultation with the social partner, and, thirdly, she contends that there was no objective reason for the exclusion of those serving in the Territorial Army.

Working on a casual basis

58. The claimant's essential submission is that what she described as the "mutuality of obligation" between the claimant and the Ministry of Defence precludes any description of his service as casual. The word "casual" must be given an autonomous community meaning, and since clause 2(2) of the Framework Agreement is dealing with an exception, it must be construed narrowly. I doubt whether much assistance in resolving this question is to be gained from the debate as to whether the word "casual" should be construed narrowly or strictly (in other words, not casually).
59. Whether a word or phrase should be construed narrowly will depend upon its context, not on any inflexible rule. The important tenet of construction to bear in mind is that exception must not be construed in a way which undermines the objective to be achieved (see, in the instant case, recital 16 of the Directive and, more generally, Christoph-Dornier-Stiftung für Klinische Psychologie v Finanzamt Gießen, a decision of the court of 6th November 2003, case 45/01 at paragraphs 42 to 43 and 48).
60. Ms Watson's submission is derived from domestic case law in which the focus has been directed at the reciprocal obligations of employer and employee, see for example Cheng Yuen v Royal Hong Kong Golf Club [1998] ICR 131, concerning caddies, and guides at a power station in Carmichael v National Power Plc [1999] ICR 1226. But the issue in those cases was whether there was a contract of employment. As Lord Irvine, in Carmichael, pointed out (at pages 1231 and 1228), whilst actually working, the guides were under ad hoc contracts of employment.
61. The submission was developed by reference to the considerable obligations imposed upon the claimant. He is under an obligation to serve a minimum number of days' training, and failure to do so may subject him to punishment (see section 97 of the 1996 Act).
62. Ms Watson identified a congeries of Regulations imposing discipline and military law on a serving part-time officer. Although she contended that the Ministry of Defence was under an obligation to make training days available, no such obligation appeared from any of the statutory provisions to which she referred me, and according to the evidence of Mr Stevens, employed by the Ministry of Defence and the Directorate of reserve forces and cadets, no such obligation exists in practice (see paragraph 15 of his witness statement).
63. In my view the nature of the service performed by the claimant is not only part-time, but is casual. The Employment Tribunal's findings of fact back in January 2001 show that he effectively chose the dates on which he would make himself available. The days he chose varied in date and frequency. The pattern of work falls within the description "casual", or if one desires clarity through synonyms, the pattern of work is occasional and random. This is equally true of the training of other members of the Territorial Army. They are afforded flexibility as to when they train (see paragraphs 16 to 20 of Mr Stevens' statement). There are wide fluctuations in the amount of training undertaken (see paragraph 33) and in practice many do not undertake the minimum requirement and are not disciplined for such failures (see paragraphs 24 to 25).
64. My attention was drawn to the reference to the United Kingdom in the Commission's report. The Commission said that the United Kingdom did not invoke clause 2(2), but no adverse comment was made. It may be that the Commission took the view that reservists do not fall within clause 2(1) of the Framework Agreement. I am unable to derive any help from that document either way.
65. I reject the suggestion that assistance is to be derived from the concept of mutuality of obligation. The word "casual" in clause 2(2) requires no definition. The services were performed, if that is not too insulting in expression, on a casual basis. No assistance is to be derived from the Ministry of Defence's own description of the service as part-time (see its own website). It would be surprising if the Ministry of Defence described service in the Territorial Army as casual. I conclude that the exception clearly falls within clause 2(2) of the Framework Agreement. I conclude, therefore, that Regulation 13(2) of the Part-time Workers Regulations is compatible with clause 2(2).

Consultation

66. It is asserted that the Royal British Legion is a social partner. No consultation as to Regulation 13(2) was undertaken with the Royal British Legion. Consultation did take place with the TUC and the CBI, but after the Ministry of Defence sought exclusion from the Part-time Workers Regulations, no further consultation took place (see paragraph 44 of Mr Stevens' statement).
67. The difficulty with the submission is that there is no national law, collective, agreement or practice, pursuant to which it is shown that such consultation should take, or had in the past taken, place. It is not possible to suggest that there is any law or collective agreement imposing such an obligation, nor any evidence of any practice to consult with the Royal British Legion. The fact that at the time such consultation was taking place in relation to other pension arrangements, according to the evidence of Mr James Bond, a member of the pensions department of the welfare division of the Royal British Legion, does not establish any practice. Nor is it shown that the Royal British Legion was a social partner.

Absence of objective reasons

68. It was further contended that there was no objective reason for exclusion of those serving in the Territorial Army undertaking voluntary duties. The reason for such exclusion was explained by Mr Stevens in his statement. He points out, at paragraph 35, that approximately 83 per cent of those joining the Territorial Army leave within the first five years. The turnover is lower for officers: 45 per cent leave within the first five years and 15 per cent within the first two years. Major Manson's 33-year association with the Territorial Army he describes as unusual.
69. In paragraph 37 he points out that the short career and the small numbers of days' service is characteristic of the majority of members of the Territorial Army undergoing training pursuant to sections 22 and 27 of the 1996 Act. He continues:

"The MOD took the view that the provision of benefits for those forms of service equivalent to those available to the Regular Army (eg in relation to pension) would involve an administrative burden and cost that would be disproportionate in amount to the value of the benefits actually conferred on the reservist. The profile of the average reservist is of a person undertaking about 27 days' service per annum and remaining in the TA for up to five years. In such a case, making service pensionable would entitle the reservist to a preserved pension of approximately £100 per year at age 60 and the cost and administrative burden involved in the administration of such benefits would be disproportionate to the value of the benefits conferred."

70. This reason was described by the claimant as insufficient. It was said that, as a matter of principle, the reason was inadequate because it amounts to no more than a plea of disproportionate administrative burden. But the principle on which the claimant seeks to rely does less than justice to the evidence given by Mr Stevens. True it is that, in cases where a Directive imposes on a Member State an obligation to act, that Member State cannot plead undue administrative expense; see for example Commission v Italy [1992] ECR 1-3515 and Commission v Belgium [1990] ECR 1-2821. But the principle presupposes an obligation. In the instant case, if there exist objective reasons for excluding those serving in the Territorial Army performing part-time casual service from the application of the Framework Agreement, no obligation is imposed at all. The disproportionate expense of awarding a pension is legitimately invoked to preclude the imposition of the obligation. The expense is not advanced as an excuse for failing to fulfil an obligation.

Conclusion

71. I conclude:
72. 1. The right which the claimant seeks to vindicate is a private law right, in respect of which this court has no jurisdiction;
73. 2. The Directive has direct effect; but
74. 3. The Regulation 13(2) is not incompatible with the Directive.
75. Ms Watson tentatively suggested that I should refer this case to the European Court of Justice, but it would be quite wrong to refer in relation to conclusions which are not necessary to my decision. Even if they had been, whilst the issues of the direct effect of the Directive and compatibility of Regulation 13(2) with the Directive are not acte clair, and, whilst I do not have the same strength of confidence in my conclusions as to direct effect as I do have in relation to compatibility, I would nevertheless have declined to refer. The delay in this case is already so great that it would be wrong to add to it so substantially by a reference.
76. Yes, Mr Choudhury?
77. MR CHOUDHURY: Yes, my Lord, I have no further applications to make.
78. MR JUSTICE MOSES: You asked for the application to be dismissed.
79. MR CHOUDHURY: Yes, the application be dismissed.
80. MR JUSTICE MOSES: And that is it? Ms Watson?
81. MS WATSON: My Lord, I would like to ask for leave to appeal.
82. MR JUSTICE MOSES: Yes. Do you want to develop that submission?
83. MS WATSON: I would like to ask for leave to appeal. We have just received this judgment orally this afternoon, so I will have to say what I need to on the basis of my notes. I would ask for leave, first of all, on the jurisdiction issue, although that has not prevented your Lordship from considering the substance the case, and also on the issue of whether the Territorial Army is casual labour within the meaning of clause 2(2) and therefore that Regulation 13 of the Regulations is compatible with the Framework Agreement.
84. MR JUSTICE MOSES: Yes, thank you very much. No, you will have to go to their Lordships. I am afraid I think it is so plain that this is a private law matter that I am not going to give you permission. Thank you very much.