Manson v Ministry of Defence

Where an employment tribunal has statutory jurisdiction to hear a complaint under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, it must determine all issues necessary to resolve that complaint. This includes whether an exclusion applies and whether, because of Community law, it must be disapplied. Regulation 13(2) limits the substantive rights only insofar as service consists of specified reserve-force training. It does not oust the tribunal’s jurisdiction or require legality to be litigated in another forum. A freestanding claim based solely on Community law remains outside the tribunal’s jurisdiction.

Major Manson, a Territorial Army officer, claimed under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 that denial of a pension for Territorial Army service was unlawful. The employment tribunal found that training days beyond the mandatory requirement were voluntary or consented to and fell within Regulation 13(2). The EAT dismissed his appeal. On judicial review, Moses J held that the claim had properly been brought before and determined by the employment tribunal, which could consider whether Regulation 13(2) was incompatible with Community law. The appeal concerned whether Regulation 13(2) removed the tribunal’s jurisdiction to decide that question.

1. Appeal dismissed. The Court of Appeal unanimously upheld the analysis of Moses J.
2. Regulation 8(1) conferred statutory jurisdiction over complaints that an employer had infringed the domestic right under Regulation 5. The tribunal therefore had jurisdiction to determine the legal and factual issues arising within that claim. Biggs v Somerset County Council distinguished between such claims and freestanding claims founded only on Community law. The latter were outside the tribunal’s jurisdiction, but a tribunal exercising domestic statutory jurisdiction had to apply Community law and disapply incompatible domestic provisions. The Court treated the EAT and Court of Appeal decisions in Biggs as supporting that distinction: the compatibility of a domestic time limit was an issue within the tribunal’s jurisdiction, although a separate claim based directly on Article 119 was not.
3. Regulation 13(2) did not disapply the Regulations entirely in cases involving reserve-force service. Its wording operated only insofar as the service consisted of the specified training obligations. A claimant’s service could therefore fall wholly or partly within the exclusion. The Regulations were being applied when the tribunal determined whether the facts brought the service within Regulation 13(2).
4. Because Community law formed part of domestic law, the tribunal could not determine the factual application of Regulation 13(2) while ignoring an issue as to its compatibility. If that issue was raised, the tribunal had to decide whether the provision should be disapplied. Sending the compatibility issue to another forum would create an impractical and legally incorrect division of proceedings. The Court did not decide whether Regulation 13(2) was in fact incompatible with the Directive or should be disapplied. Order: appeal dismissed.

1. Court of Appeal (Civil Division): Appeal from Moses J dismissed.
2. High Court, Queen’s Bench Division (Administrative Court): Moses J held that the claim was properly brought before the employment tribunal and that the tribunal could determine the application and Community-law compatibility of Regulation 13(2).
3. Employment Appeal Tribunal: The appeal from the employment tribunal failed. The EAT principally addressed whether the service fell within Regulation 13(2) and indicated that any compatibility challenge should be pursued by judicial review.
4. Employment Tribunal: Found that training days beyond the mandatory requirement had been volunteered for or consented to, and concluded that Regulation 13(2) applied.