United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RAMBY de MELLO and MR ADRIAN BERRY (of Counsel) Instructed under the Direct Access Scheme
For the Respondent	MR JOHN CAVANAGH (One of Her Majesty's Counsel) Instructed by: The Treasury Solicitor Litigation & Employment Group 4B One Kemble Street LONDON WC2B 4TS

SUMMARY

PART TIME WORKERS

Was a part-time fee paid tribunal chairman a "worker" within the meaning of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000? The EAT, upholding the decision of the Employment Tribunal, held no.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. The appellant in this case was a fee paid, part time chairman of various social security appeals' tribunals. On his retirement he claimed to be entitled to certain pension rights. He was excluded by the relevant statutory provisions. He submitted that his exclusion infringed the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ('the 2000 Regulations'). As a preliminary issue, the question arose whether he fell within its terms. The Employment Tribunal sitting in Cardiff held that he did not. He now appeals against that ruling.

The background

2. The relevant facts are largely undisputed. The appellant was a practising barrister. He was also a fee paid part time chairman of the National Insurance and Social Security Tribunals from 1982 until 30 September 2005. He chaired various tribunals; their precise identity is not material. His appointment was by the Lord Chancellor, although the Department for Work and Pensions had administrative responsibility for the tribunals which he chaired. The appellant sat in Cardiff.
3. The arrangement for a fee paid part time chairman was that he would sit on a daily basis. He was paid a fee for each day that he sat, together with travel expenses. He could choose whether to work on a particular day. If a sitting was cancelled at short notice then he would not be paid. He paid national insurance and was taxed as an office holder under Schedule E. There were a minimum number of sitting days and until recently, a maximum number also.
4. He was expected to attend training events, he had to comply with judicial standards of behaviour, and he had the administrative services such as a library, bench books, protocols, made available to him.
5. Of course, as an independent judicial office holder, neither the Lord Chancellor nor anybody else could dictate to him how to determine the cases before him. Mr Christie was not subject to the same terms and conditions of other civil servants, nor to the disciplinary procedures, although he could be removed for misconduct in office. He did not have a line manager. He did, however, have to attend where he was told and to take the cases allocated to him.
6. There are full time tribunal chairmen who are salaried, and also part time salaried chairmen. The latter have been appointed since 2003. Both part time and full time salaried chairmen do have pension able service. The difference between the part time salaried and the fee paid chairmen is that the former agree sitting arrangements in advance and are obliged to sit on the days that are agreed. Accordingly they have less opportunity to determine whether or not they are going to sit than a fee paid part timer.

The 2000 Regulations

7. The aim of these Regulations is to ensure that part time workers are not treated less favourably than full time workers, either in relation to the terms of their contract or by being subjected to any other detriment (regulation 5). Generally, equality is achieved by applying the pro rata principle (regulations 5(3) and 1(2)). However, the rights under the Regulations apply only to workers (indeed, some apply only to employees, who are a subset of workers.)

'Worker' is defined in regulation 1(2) as follows:

"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.

8. It follows that the essential characteristic of being a worker is that the individual worker must be providing work pursuant to a contract personally to carry out work or services for the other party to the contract. It is not suggested in this case that a part time chairman is a customer of somebody carrying on a professional business.
9. Regulation 12 deals with a special class of worker, namely those in Crown employment. The provisions are as follows:

"(1) Subject to regulation 13, these Regulations have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees and workers.

(2) In paragraph (1) "Crown employment" means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision."

10. Regulation 17 is central to the arguments in this case. It is as follows:

"These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis."

11. The Regulations are designed to implement the Part Time Workers Framework Directive (97/81/EC). The purpose of that Directive is to give effect to the Framework Agreement on part time work made between the Union of Industrial and Employer Federations of Europe, the European Trade Union Confederation, and the European Centre of Enterprises for Public Participation. The Agreement (which is appended to the Directive) defines the purpose and scope in clauses 1 and 2 respectively:

"Clause 1: Purpose

The purpose of this Framework Agreement is –

(a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work;

(b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organization of working time in a manner which takes into account the needs of employers and workers.

Clause 2: 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."

12. Clause 3 of the Agreement then defines when a worker is part-time or full-time.

It does not, however, define a worker as such.

13. The Directive itself which implements the Agreement contains a number of recitals relied on in this case. Recital 16 the following:

"Whereas with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves member 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."

14. Recital 22 states:

"Whereas Clause 6.2 of the Framework Agreement provides that implementation of this not serve to justify any regression in relation to the situation which already exists in each Member State."

15. Article 1 of the Directive states that its purpose is to implement the Framework Agreement and Article 2 provides that it should be implemented not later than 7 April 2000, although there is a limited power given to member states to extend the period of implementation.

The arguments in outline.

16. It is important to identify the issues still in dispute. Mr de Mello, counsel for Mr Christie, realistically conceded that if this were simply a matter of construing domestic law independently of EU law, Mr Christie would not be able to bring himself within the statutory provisions. This is for a variety of reasons.
17. There is a series of cases which have concluded that a statutory office holder is not employed under a contract: see eg Terrell v The Colonial Secretary [1953] QB 482 (CA) relating to judges; Fisher v Oldham Corporation [1930] 2 KB 365 concerning police officers; and Knight v Attorney General [1979] ICR 195, which held that a Justice of the Peace is not "in employment" within the meaning of the Sex Discrimination Act 1975. There is also weighty authority that such an office holder is not acting for the purposes of a government department or officer of the Crown so as to be caught by regulation.12: see e.g. the Knight case; Shaikh and Banerjee v Independent Tribunal Service UKEAT/0656/03 in which HH Judge Peter Clark, sitting in the EAT, held after a careful review of the authorities that part time chairmen of social security tribunals were officers and as such were neither employees nor in Crown employment. In any event, Mr de Mello accepts that the natural construction of regulation 17 would exclude Mr Christie. That is in accordance with the view of the Court of Appeal in Northern Ireland in Perceval-Price v The Department of Economic Development & Ors [2000] IRLR 380.
18. The submission is that the Regulations cannot simply be read as a piece of domestic legislation. The argument addressed both before the Employment Tribunal and before us is that they can and must be given a construction which accords with EU law. The Regulations are designed to implement the Directive. There is a common concept of "worker" for the purposes of EU law which would embrace a person in Mr Christie's position. Tribunals and courts are obliged to construe domestic legislation in a way which is compatible with EU law. The effect of adopting that principle in this case is that regulation 12 is capable of being read so as to treat Mr Christie as falling within its terms and therefore ought to be so construed. Regulation 17 is also capable of being read down in this way. It can be construed so as to exclude Mr Christie and others in his position only in so far as they hold judicial office, but not to the extent that they have a contractual relationship. The exclusion bites on the office but not the contract.
19. The respondents contend that this argument is misconceived. They submit that there is no general concept of "worker" within the meaning of European law; it all depends on the context. Here the Directive in terms allows member states to define key concepts provided it does not undermine the basic protection of the Directive. That is not the effect of this exclusion. Accordingly there is no backcloth of EU law which informs the construction of the definition of "worker" within the Regulations. Ordinary domestic principles of construction ought to be adopted and it is accepted that on that analysis this claim is doomed to fail.
20. In any event, even if the Regulations did infringe EU law, it is not possible to construe either regulation 12 or regulation 17 in a way which is compatible with the wider concept of "worker" sometimes adopted in EU law. There is a limit to the extent to which statutory provisions can be rewritten and that limit is reached here. In particular, regulation 17 would have no meaning at all if it were to be construed as suggested by Mr Christie.

The decision of the Employment Tribunal.

21. The Tribunal Chairman Mr J Thomas, in a careful and succinct judgment, rejected Mr Christie's submissions. He held that there was no general concept of worker underlying EU law. Moreover, the Directive specifically gave scope for member states to define an employment relationship or employment contract, and that is what the UK had legitimately done. The Chairman found that as a matter of domestic law the Regulations plainly excluded Mr Christie, and there was nothing in EU law to require a different construction.
22. There was a further argument addressed before the Tribunal which has not been pursued on appeal. Mr Christie ran an argument that the Directive was sufficiently clear, precise and unconditional so as to provide a directly enforceable Community right. The significance of this was that if he was right in the contention that domestic law was inconsistent with Community law, it would oblige the Court to disapply the conflicting provisions of domestic law: see eg Marshall (No1) v Southampton Area Health Authority [1986] ICR 335. The Tribunal found that there was no directly enforceable right. The appellant sought to challenge this in his appeal but at the sift stage His Honour Judge McMullen QC rejected this ground. There was no renewed application to pursue it.
23. Mr de Mello suggested at the start of the proceedings that it was already contained in one of the grounds that were permitted to go forward, but I rejected that. He also sought leave to amend his grounds to be allowed to argue the point. However, Mr Cavanagh did not have any advanced notice that it was going to be pursued, and understandably was not in a position to deal with the argument. Moreover, his skeleton argument had alerted the appellants to the fact that he did not think this point was still in issue in view of HH Judge McMullen's order. In the circumstances I did not consider that I could give leave for the point to be argued. I merely note that Moses J, as he was, came to a different conclusion in a judicial review case, albeit that the point was obiter: see R (on the application of Finian Manson) v The Ministry of Defence CO/4831/2002. I heard no argument on the point and express no view about it.

The issues.

24. There are essentially three issues in the case, which can be summarised as follows:

(1) Is there a single concept of "worker" which has been adopted for all purposes in EU law, and if so, would it embrace Mr Christie?

(2) If there is not, and if there is a discretion given to the UK to adopt its own definition, could it in the proper exercise of that discretion properly adopt a definition which excluded part time fee paid judicial officers, or was that contrary to EU law for being incompatible with the purpose and effect of the Directive?

(3) If the Regulations do conflict with the Directive, is it possible to construe the Regulations so as to be compatible with EU law?

(1) Is there an EU concept of "worker"?

25. Mr de Mello submits that the Regulations must be interpreted in the light of the Directive and in accordance with the general principles of Community law. This Framework Agreement has its source in Article 139 Title XI of the Treaty on European Union which is the same title incorporating Article 141.
26. In Perceval-Price v The Department of Economic Development & Ors [2000] IRLR 380 the Court of Appeal in Northern Ireland was faced with a claim by certain permanent full time senior tribunal chairmen that they had been discriminated against in breach of Article 141 and the Equal Pay Act in connection with their pension rights. A preliminary issue was whether they fell within the terms of Article 141. The court concluded that they fell within the relevant definition of "workers" within the meaning of Community law. In the course of his judgment, the then Lord Chief Justice of Northern Ireland (Sir Robert Carswell LCJ) said this:

"25 Are the respondents 'workers'?

In order to come within the provisions of Community law to which we have referred, the applicants have to establish that in Community law they would be classed as 'workers' who are in 'employment'. The Court of Justice has declared that the term 'workers' has a Community meaning in the context of Article 48 of the Treaty (now renumbered Article 39) and may not be interpreted differently by national legal systems: see paragraph 16 of its judgment in Lawrie-Blum v Land Baden-Wuerttemberg [1986] ECR 2121. The criterion for application of Article 48, as the Court said at paragraph 15 of the judgment, is the existence of an employment relationship, regardless of the legal nature of that relationship and its purpose. It went on to say at paragraph 17:

'That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.'

26 Counsel for the appellants correctly pointed out that the term 'worker' is capable of bearing a different meaning in different parts of the Treaty and in other Community legislation. We do not see any compelling reason, however, why it should have a narrower meaning in the context of equality of pay and opportunity than that which it bears in the context of the free movement of workers within the Community. The object of Article 119 and the Directives is to give protection against inequality and discrimination to those who may be vulnerable to exploitation. The term 'workers' should be construed purposively, as the tribunal held, by reference to the object of the legislation."

27. The Tribunal went on to hold in the circumstances of that case that it was not possible to construe the relevant legislation compatibly with EU law. However, they disapplied the conflicting provisions because Article 141 conferred a directly enforceable right.
28. The appellant submits that a similar approach should be adopted here. The need to protect discrimination against part timers is no less significant than protecting the interests of women who complain of sex discrimination. Title X1 is concerned with providing social protection for workers and there is no rationale for adopting a different concept of "worker" depending on the nature of the social protection in issue. The concept of "worker" is a fundamental legal concept which should be consistently applied; it has an autonomous meaning. If the Directive had intended to exclude any particular category of workers it could have done so.
29. It is further contended that given the broad concept of "worker" laid down in the Lawrie-Blum case (reproduced above in the extract from Sir Robert Carswell's judgment), Mr Christie plainly falls within its terms. He is performing services for the Lord Chancellor and under the direction of another. He is subjected to various restrictions, albeit that he has complete independence in the way in which he acts in his judicial capacity. Mr de Mello finds support for this submission in Perceval-Price in which the court concluded that the full time chairmen were "workers" as defined by Article 119. Sir Robert Carswell said this (paras 26-27):

"All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the president of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment, as servants of the State, even though as office holders they do not come within the definition of employment in domestic law.

This issue has not to our knowledge been the subject of any decided case in our domestic law. It was considered by the Court of Session in Stevenson v Lord Advocate [1999] SLT 382, when the Lord Ordinary Lord Kirkwood expressed the opinion with some caution that a sheriff might constitute a 'worker' within Article 119. On appeal the First Division decided the matter without determining the issue. The tribunal in the present case took the view that the term 'worker' in the context of Community law must be interpreted broadly and in a purposive fashion, an approach with which we agree. The object of the Community legislation, protection against inequality of treatment or discrimination, seems to us to require the inclusion within the definition of all persons who are engaged in a relationship which is broadly that of employment rather than being self-employed or independent contractors. This being so, we are of opinion that the respondents come with the terms of Article 119 [now 141]and the Directives as workers in employment."

30. Mr Cavanagh submits that this argument is misconceived. He rightly observes that in the passage in Perceval-Price the Lord Chief Justice agreed with counsel that "the term 'worker' is capable of bearing a different meaning in different parts of the Treaty and in other Community legislation". More specifically, he relies on an observation of the Advocate General in the case of Wippel v Peek & Cloppenburg GmbH & Co KG [2005] ICR 1604. The case concerned the application of both the Directive on Sex Discrimination and the Part Time Worker Framework Directive. In the course of giving her opinion, Mrs Advocate General Kokott, said this (paras 42-45):

"(C) Question 1(a)-(c): concept of "worker"

By question 1(a)-(c), the referring court essentially wishes to establish whether the concept of "worker" within the meaning of article 141 EC, Directive 75/117, the framework agreement on part-time work and the Community Charter of the Fundamental Social Rights of Workers also encompasses persons who are employed only to a limited extent and carry out their work on demand without fixed working hours having been stipulated in advance.

There is no single definition of worker in Community law – the meaning of the term depends on the particular provision concerned: Martinez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR i-2691, 2719, para 31, and Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328, 1359, para 63. A distinction should therefore be drawn in this respect between the framework agreement on part-time work, on the one hand, and article 141 EC, Directives 75/117 and 76/207, and the Community Charter of the Fundamental Social Rights of Workers, on the other.

(I) The concept of worker under the framework agreement on part-time work

The framework agreement on part-time work applies, according to clause 2(1), "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".

Consequently, for the purposes of the framework agreement, the term "worker" is not a Community law concept. Indeed, the personal scope of application of the framework agreement is defined by reference to the national law applicable in each case. The term "worker" therefore has to be defined in reliance on the law, collective agreements and practices in force in each member state. The member states have wide discretionary powers in this respect. Only the very broadest limits can be determined in this respect by reference to Community law. It could therefore constitute a breach of the duty of co-operation (article 10 EC) if a member state were to define the term "worker" so narrowly under its national law that the framework agreement on part-time work were deprived of any validity in practice and achievement of its purpose, as stipulated in clause 1, were greatly obstructed. However, there is no sign of that here."

This is not simply a view expressed by the Advocate General but as she indicates in para 43, it is an observation that has been made on occasions by the Court itself.

31. Mr Cavanagh submits that both the Recital 16 and Clause 2 of the Agreement, which defines its scope, envisage in terms that the meaning to be given to "employment contract" or "employment relationship" will be left to each Member State. He submits that if the appellant were correct it would have been unnecessary for the clause to say anything more than "this agreement applies to part time workers". In particular it would not have been necessary to identify that category by reference to the law, collective agreement or practice in force in each Member State.
32. In my judgment, the respondents are clearly correct in their submissions. It seems to me impossible to contend that there is a concept of "worker" which has to be applied in all cases where the concept arises in EU law. That is inconsistent with decisions of the ECJ. Equally importantly, it leaves no scope for the application of Clause 2. There would be no purpose in identifying the category of worker concerned by reference to the different laws, collective agreements or practices in each Member State.
33. Moreover, there are other decisions of the court which would contradict the argument advanced by the appellant. In Chacón-Navasse v Eurest Colectividades SA [2006] IRLR 706 an issue arose as to the concept of disability in EU law. In considering that concept the court said this (paras 39-40):

"The concept of disability is not defined by Directive 2000/78 itself. Nor does the Directive refer to the laws of the Member States for the definition of that concept.

It follows from the need for uniform application of Community law and equality that the terms of provision of Community law which makes no express reference to the law of the Member States, the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (see inter alia Case 327/82 Ekro [1984] ECR 107, para 11 and Case 323/03 Comminssion v Spain [2006] ECR 1-000, para 32). "

34. Again, that analysis is consistent with the view that there is no justification for asserting that a concept of Community law must be given an autonomous and uniform interpretation in circumstances where there is express reference to the law of the Member State. That is the position here. Moreover, there is no definition in the Directive or the Agreement of "worker", merely of when a worker will constitute a part time worker. Accordingly, in my judgment there is no justification for applying the concept adopted in the Lawrie-Blum case to the very different circumstances of this Directive.
35. I would, however, add that if that were the applicable definition, then I agree with Mr de Mello that Mr Christie would fall within its terms. Mr Cavanagh submitted that he would not because he was not acting under the direction of another person but the Northern Ireland Court of Appeal reached a different conclusion and I would not be minded to dissent from their view.

(2) Is the exercise of discretion conferred on the UK exceeded in the circumstances here?

36. Mr de Mello, in the alternative, contended that even if there is a discretion given to Member States, it would fundamentally undermine the purpose of the Directive if the scope of those protected by the Directive were to be limited. He relied on the case of Konstantinos Adeneler & Others v ELOG (C-212/04). That case concerned the proper interpretation of the Framework Agreement on fixed term work which, like the agreement in this case, was annexed to a Council Directive, namely the Directive Concerning the Framework Agreement on Fixed Term Work (1999/70/EC).
37. That Directive similarly gives a broad discretion to Member States to identify who should constitute a fixed term worker. One of the issues in that case was whether a national rule which only permitted successive fixed term contracts to be regarded as a single contract if they were not separated from one another by a period of time longer than 20 working days, was incompatible with the Directive. In the course of giving judgment, the ECJ said this (para 68):

"It is true that the Framework Agreement refers back to the Member States and social partners for the detailed arrangements for application of the principles and requirements which it lays down, in order to ensure that they are consistent with national law and/or practice and that due account is taken of the particular features of specific situations (see paragraph 10 of the general considerations in the Framework Agreement). While the Member States thus have a margin of appreciation in the matter, the fact remains that they are required to guarantee the result imposed by Community law, as follows not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 or Directive 1999/70 read in conjunction with the 17^th recital in its preamble."

38. Mr de Mello submits that the same principle applies here. The exclusion adopted by the UK fails to guarantee the result imposed by the Directive.
39. I reject that submission also, essentially for the reasons advanced in argument by Mr Cavanagh. Clause 2 plainly envisages that the Member State can, at least within limits, determine the scope of the agreement. It would negate the effect of that provision to assume that there was a concept of worker which had to be adopted, and then to assert that any departure from that concept would undermine the protection afforded by the Directive.
40. The Directive gives protection to those who are defined as relevant workers under domestic law. There will necessarily be some limitation on the extent to which Member States can define the relevant concept, otherwise it would in effect entitle them to contract out of the purposes of the Directive. But there is, in my judgment, reasonable leeway which Member States are accorded. That is supported by the observations of Advocate General Kokott in the Wippel case in the passage we have set out above. She talks about Member States having "wide discretionary powers" and notes that the limits are very broad. The Konstantinos Adeneler case, in my judgment, is far removed from the circumstances envisaged here. That involved passing a law which on the facts the Court held did significantly undermine the protection of the statute.
41. Here there is a minor limitation excluding a certain limited category of part time judicial officers. The exclusion is of a fundamentally different nature to that in Adelener. Clause 2 of the Agreement plainly envisages that some categories which might be thought to fall within the broad definition of "worker" can be excluded by a Member State. If that premise is correct, as I think it is, then this exclusion seems to me wholly consistent with the discretion given by the Directive and the Agreement to Member States.
42. I also reject another submission to the effect that the exclusion conflicts with recital 22 read with clause 6(2) of the Agreement. That forbids a member state from making any regression in the protections afforded to part time workers as a result of the Directive. It was suggested that to exclude this category of tribunal chairman infringed that principle. I do not agree; all that this principle ensures is that nobody's existing rights will be prejudiced as a result of the Directive. Mr Christie had no rights before it was implemented, so there is no regression in continuing to deny him any rights.

(3) Could the Regulations be read compatibly with the Directive?

43. This issue does not of course arise given my conclusion with respect to the first issue. Accordingly, I will deal with it briefly. It is common ground that domestic legislation can only be interpreted in accordance with the principles of Community law in so far as it is possible to do so. A recent statement of the principle is found in Pfieffer and others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] ICR at page 1307, (Cases C-397-403/01). The court said this (para 113):

"Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a Directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the result sought by the Directive and consequently comply with the third paragraph of article 249 EC: see to that effect, inter alia, the judgments cited above in Von Colson [1984] ECR 1891, 1909, para 26, Marleasing [1990] ECR I-4135, 4159, para 8, and Faccini Dori [1994] ECR I-3325, 3357, para 26; see also Bayerische Motorenwerke AG (BMW) v Deenik (Case C-63/97) [1999] ECR I-905, 936, para 22, Océano Grupo Editorial SA v Murciano Quintero (Cases C-240-244/98) [2000] ECR I-4941, 4975, para 30, and Adidas-Salomon AG v Fitnessworld Trading Ltd (Case C-408/01) [2004] Ch 120, 138, para 21."

44. It should be noted, however, that the court also recognised (para 116) that the interpretative methods to be applied are those recognised by domestic law. Mr De Mello submits that it would be perfectly possible to give effect to the wide concept of worker by giving a broad interpretation to regulation 12. Indeed that was essentially what the Northern Ireland Court of Appeal did in the Perceval-Price case. They held that there was no reason why a salaried full time chairman could not fall within the terms of s1(9) of the Sex Discrimination (NI) Order 1976, which is in very similar terms to regulation 12. He also noted that Baroness Hale of Richmond in Matthews v Kent Fire Authority [2006] ICR 365 at para 36 had expressed the view, albeit it without any consideration of the relevant authorities, that judicial office holders would have fallen within the scope of the 2000 Regulations but for the exclusion in regulation 17.
45. Mr Cavanagh contends that neither the Northern Ireland Court of Appeal nor Baroness Hale of Richmond had considered the weight of domestic authority to the contrary. In my judgment that misses the point. The question here is not what the better construction of the Regulations is applying domestic principles of interpretation but rather whether it is possible to adopt a construction which is compatible with Community law. The fact that Baroness Hale thought that judicial officers were caught, save for regulation 17, at the very least supports the proposition that it is a possible construction of the legislation. Similarly, in my view, the Court in Northern Ireland was merely making that point. I therefore agree with the appellant on whether regulation 12 can be construed compatibly with the Directive.
46. However, I do not think it is possible to construe regulation 17 in the same way. In fairness, Mr de Mello saw the difficulty. He sought to counter it by suggesting that it merely excluded somebody who only had an office and not someone who also had a contract, as he submits is the position here. I doubt whether it is right to say that someone caught by regulation 12 does have a contract, but even if he does, I do not think that it is legitimate to make the distinction he is suggesting.
47. I agree with Mr Cavanagh that if this argument were correct, it would mean that regulation 17 would be wholly negated. It would serve no purpose at all since the premise of the argument is that all judicial office holders – or at least those in the excluded category - also have a contract. Applying domestic principles of statutory construction, I do not see that it can be legitimate to reach such a conclusion. If, therefore, I had concluded that the Regulations were incompatible with the Directive, I would have concluded that there was no possible construction of regulation 17 which could secure harmony between the two and therefore Mr Christie would have failed on this count.

Disposal.

48. However, for more fundamental reasons, I consider that the premise behind the whole argument, namely that there is an autonomous concept of "worker" in Community law which should inform the proper construction of the Regulations in this case, is false. Nor do I think that the discretion afforded to the Member States is even arguably abused by excluding this particular category of part time chairmen. I should add that I do not think there is any real dispute as to the proper meaning of Community law here; the position is, in my opinion, acte claire. It follows that for essentially the same reasons as those given by the Chairman below, this appeal fails.