Manson, R (on the application of) v Ministry of Defence

A claim concerning pension and employment conditions arising from service in the Territorial Army is a private-law claim against the Ministry of Defence. It must be determined by the Employment Tribunal, which has jurisdiction to apply both domestic and directly effective Community law.

Clause 4 of the Framework Agreement on part-time work was sufficiently precise and unconditional to have direct effect. However, the exclusion in regulation 13(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was compatible with clause 2(2). Territorial Army training could constitute casual part-time work, and objective reasons supported the exclusion.

The claimant, a Major in the Territorial Army, claimed that the denial of a service pension infringed the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and Council Directive 97/81. The Employment Tribunal held that his training fell within regulation 13(2), so that the Regulations did not apply. The Employment Appeal Tribunal upheld that conclusion.

The claimant sought judicial review, arguing that regulation 13(2) was incompatible with the Directive. The issues were whether the claim was public or private law, whether the Directive had direct effect, and whether the exclusion was compatible with the Framework Agreement.

1. Jurisdiction. The claim concerned rights arising from the claimant’s service relationship, including pay and pension conditions. It was therefore a private-law claim. The Employment Tribunal was the appropriate forum and had jurisdiction to apply domestic law and Community law, including any directly effective Directive. The Administrative Court had no jurisdiction to determine the claim.
2. Direct effect. The principle in clause 4 of the Framework Agreement was sufficiently precise and unconditional to be relied upon by an individual. The fact that Member States retained discretion over implementation did not prevent direct effect. Clause 2(2), however, permitted Member States to exclude wholly or partly part-time workers working on a casual basis, subject to the requirement that national definitions respect the Agreement’s minimum requirements.
3. Casual work. The claimant’s Territorial Army training was part-time and casual. The relevant features were the claimant’s practical choice of training dates, fluctuating frequency of service, flexibility of training arrangements and the occasional and random pattern of work. Mutuality of obligation was not determinative.
4. Consultation and objective reasons. The evidence did not establish a legal, collective or customary obligation to consult the Royal British Legion. There were objective reasons for the exclusion, including the short and uncertain duration of most Territorial Army service, the low number of service days, and the disproportionate administrative burden and cost of providing pension benefits of limited value.
5. Disposition. The conclusions on direct effect and compatibility were obiter because the application failed on jurisdiction. The judicial review application was dismissed. Permission to appeal was refused.

The judgment states that the Employment Tribunal dismissed the claimant’s Part-time Workers Regulations claim on 7 January 2002. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing on 30 October 2002. The Administrative Court dismissed the subsequent judicial review application and refused permission to appeal.