United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SUSAN CHAN (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


THE HONOURABLE MR JUSTICE WALL

1. This is the Preliminary Hearing of an appeal by Mr Finian Manson against the Decision of the Employment Tribunal held at London (South) on 7 January 2002 (inaccurately identified on the first page of the Tribunal's Reasons as 7 January 2001) and promulgated on 29 January 2002. The unanimous decision of the Tribunal was that it did not have jurisdiction to hear Mr Manson's claim against the Ministry of Defence (the Respondent) under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Part Time Regulations).
2. The essence of this part of Mr Manson's claim is that he was required by the Respondent to undertake (and thus entitled to be paid for) training which he had undertaken which was additional to the statutory number of days training laid down in the relevant Territorial Army Regulations (the TA Regulations). The Respondent's argument, in essence, was that; (a) paragraph 13(2) of the Part Time Regulations specifically provided that those Regulations did not apply to Mr. Manson's training obligations; and (b) that any additional days training undertaken by Mr. Manson over and above those laid down in the TA Regulations were voluntarily undertaken.
3. The case has a complex procedural history which we need to outline in order to understand where we are. Mr Manson, who is a Major in what for present purposes we will call the Territorial Army, initially brought proceedings against the Ministry of Defence claiming that he had been treated unfairly in a number of ways, and that he had suffered direct and indirect discrimination in his career management and promotion.
4. The Ministry of Defence put in a Notice of Appearance by means of which it raised a preliminary issue of jurisdiction and, without prejudice to its case on jurisdiction, put forward a substantive defence on the merits. A preliminary hearing of the claim took place before the Tribunal on 21 September 2001 (with extended reasons given on 16 November 2001, which are in our papers). The Tribunal held that it had no jurisdiction to hear Mr Manson's claims under the Human Rights Act 1998, the Reserved Forces Act 1996, the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Unfair Contract Terms Act 1977; all in relation to breach of contract.
5. The Tribunal, however, held that Mr Manson had an arguable case under the Part Time Regulations, and it directed that that part of his claim should be heard on 7 January 2002.
6. Mr Manson put in a Notice of Appeal against the decision made at the Preliminary Hearing on 21 September 2001, but that Notice of Appeal does not appear to have been received by the Tribunal in time. In any event, we have been told today by Miss Chan, who appears under the ELAAS Scheme to represent Mr Manson, that that aspect of the case is not pursued. We are, therefore, concerned with Mr Manson's appeal against the Tribunal's decision on the Part Time Regulations given on 7 January 2002.
7. We are extremely grateful both to Miss Chan and to Mr Manson himself for the great care which they have taken in the presentation of the documents and the arguments they have put before us. We should also say that have some sympathy for Mr Manson who, we say at once, is plainly a conscientious member of the reserve forces who takes his obligations extremely seriously. That, we think, will emerge from the judgment, as we continue.
8. The question before us turns very largely on the training obligations which members of the reserve forces are obliged to undergo, and whether or not the Part-Time Regulations apply. Regulation 13 (2) of the Part Time regulations provides as follows: -

"These Regulations shall not have effect in relation to service as a member of the reserved forces insofar as that service consists in undertaking training obligations -

(a) under sections 38, 40 or 41 of the Reserved Forces Act 1980,

(b) under section 22 of the Reserved Forces Act 1996,

(c) pursuant to Regulations made under section 4 of the Reserved Forces Act 1996, or consists in undertaking voluntary training or duties under section 27 of the Reserved Forces Act 1996."

9. The relevant portions of the Reserved Forces Act 1996 are as follows:

22 "Training Obligations of Members of the Reserved Forces

(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 of more periods not exceeding 16 days in aggregate; and

(b) such other periods as my 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.

(2) Such orders or Regulations may, in particular, prescribe different periods under subsection (1) (b) for different forces or parts of a force.

27 Voluntary Training and Other Duties

(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 trained 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)."

10. Mr Manson's case is that he was required to train for periods exceeding 16 days in aggregate in the years 1 April 2000 to 31 March 2001 and the year commencing 1 April 2001, and that the additional dates that he was required to train were neither undertaken with his consent, under section 22 (1) (b) of the Reserved Forces Act 1996 nor undertaken voluntarily under section 27 (1) of the Reserved Forces Act 1996.
11. Under the TA Regulations, Mr. Manson is required to complete 15 days in camp in any one year (Paragraph 2.022) and 4 days out of camp training (Paragraph 2.034), a total of 19 days. The relevant part of standard letter which he receives in relation to this is summarised by the Tribunal in this quotation:

7 (iii) "…to enable you, us and the user to do some forward planning you are requested to indicate which of the events shown you plan to attend bearing in mind the priority shown and funding (days) limitations. The list shows other training events which we are required to support and these may be taken up in addition to listed formation training; but not normally in lieu"."

12. The argument put forward on the interpretation of the Statute advanced by Miss Chan is this. She submits that the 19 days of mandatory training cannot fall within section 22 or 27 of the Reserved Forces Act 1996 for the following reasons. Firstly, it does not come within section 22 (1) (a) as it exceeds 16 days in aggregate. Secondly, it does not come within section 22 (1) (b) as it indicates that whatever additional periods are prescribed must not exceed 36 hours without the consent of the person concerned. Yet, she submits, 19 days is the equivalent to three days or 72 hours in excess of the 16 day period referred to in section 22 (1) (a) and that 72 hours cannot be said to be undertaken with the consent of the person concerned when the Regulations state in unequivocal terms that the training must be done.
13. With great respect to Miss Chan we are unable to accept this argument. It seems to us that section 22 is very clear. It effectively breaks training down into two parts. The first part (not exceeding 16 days in aggregate) is the 15 days which is referred to in the TA Regulations as they apply to Mr Manson. The second part (such other periods as may be prescribed) is the 4 days. In relation to the latter, no one period of training may exceed 36 hours without Mr. Manson's consent. In our judgment, it follows that the training he is obliged to undertake under the TA Regulations (15 + 4 days) is the limit of his obligations. He is not required/obliged to more. As the letter indicates, training is divided into two parts: events which must be attended and events which Mr. Manson was invited to attend. In relation to the latter he was asked to indicate which he was going to attend. No doubt, as we said earlier, as a conscientious member of the Territorial Army Mr Manson feels constrained to obey the call when it comes. But the call, in this instance, is a request it is not, as we see it, insofar as training is concerned, an order, As we indicated a moment ago, we cannot read sections 22 and 27 in the way that is sought by Miss Chan.
14. In these circumstances we are satisfied on this point that the Tribunal was right when it decided, as it did, that it did not have jurisdiction to hear Mr Manson's claim under the Regulations.
15. However, Mr Manson has a second point which he has advanced this morning and which we think was not probably fully developed before the Tribunal below, namely that the Part Time Regulations themselves are ultra vires and unlawful in that they inappropriately and unlawfully exclude members of the armed forces from the provisions of the Part Time Regulations themselves. Without a derogation from Brussels, Mr. Manson argues that this is unlawfully discriminating against him.
16. We have considered this argument and looked both at the Directive and at the Part-Time Regulations themselves. The Part Time Regulations in paragraph 13 state that: -

(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)

(b) to employment by association established for the purposes of part XI1 of the Reserve Forces Act.

17. We have already set out Regulation 13(2). It seems to us, accordingly, that the Part Time Regulations do apply in general terms but are excluded in relation to training. 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. Certainly there is nothing in the Regulation or in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 which, in our view, leads us to find that they are in any way unlawful or that Parliament has acted beyond its powers in enacting them.
18. Therefore, although as we indicated earlier we have some sympathy for Mr Manson who, I repeat, is plainly a conscientious member of the Territorial Army, we are of the view that the Tribunal's decision was correct. The Part Time Regulations do not apply and accordingly this appeal would stand no prospect of success if it went forward to a full Tribunal hearing. It will, accordingly be dismissed at this stage. Once again we repeat our gratitude both to Mr Manson and to Miss Chang for the care with which they developed the arguments before us.