O'Brien v Department for Constitutional Affairs

Recorders play an important part as part-time judges in the Crown Court and the County Courts. Most are in full-time practice as barristers or solicitors, although some have left practice and hold full-time positions as, for example, District Judges. The focus of this case is upon those who remain in practice but sit on a part-time basis. They are remunerated on a fee-paid daily basis. Whether or not they continue in practice beyond the age of 65, they are stood down as Recorders at that age. The main reason for this is to create vacancies for younger Recorders from whom, it is expected, most of the future full-time judiciary will be appointed. Until recently, no-one would have thought that a Recorder qualified for a pro rata judicial pension on retirement. The issue raised on this appeal is whether the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the PTWR), which is founded upon and purports to implement the Part-time Workers Framework Directive 97/81/EC) (the Directive), either entitles or disentitles Recorders to or from the protection of part-time workers against discrimination.

The appellant was a Recorder from 1978 until his retirement at the age of 65 on 31 March 2005. He is one of a number of part-time judicial office holders who have instituted proceedings in the Employment Tribunal claiming that protection. The claim may appear to be a bold one since Regulation 17 of the PTWR provides:

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

It is common ground that that provision is not susceptible to an interpretation favourable to the appellant. However, his case is that Regulation 17 must be disapplied because of the direct effect of the Directive which does not permit a provision of that kind.

The substance of this case (although not all the submissions in support of it) was considered by the Employment Appeal Tribunal in Christie v Department of Constitutional Affairs [2007] ICR 1553, in which Elias J, sitting alone, concluded that Regulation 17 was compatible with the Directive. Permission was granted to appeal to this Court but the appeal was abandoned after the appellant failed to obtain a protective costs order. The present case has an interesting procedural history. It was heard in the Employment Tribunal in July 2006, before the decision of the Employment Tribunal in Christie and long before the decision of the Employment Appeal Tribunal in that case. The hearing in the Employment Tribunal in this case had been intended to consider four issues:

“First, is the claim brought out of time? Second, if so, would it be just and equitable to extend time? Third, if so, does Regulation 17 of the PTWR bar the claimant from bringing his claim? Fourth, if so, can the claimant nevertheless rely on the provisions of the Directive and argue that it has not been properly implement into UK law?”

However, at the hearing it was decided that only the first two issues relating to time would be decided at that stage. The chairman recorded:

“For the purposes of determining the time issue, I am asked to assume that Regulation 17 is incompatible with EC law.”

The decision of the Employment Tribunal was that the claim had been brought out of time but that it was just and equitable to extend time. The Department for Constitutional Affairs (the Department) appealed to the Employment Appeal Tribunal in relation to the extension of time whereupon the appellant cross-appealed on the question whether he was out of time in the first place.

On 23 April 2008, Langstaff J (sitting alone) allowed the appeal and dismissed the cross-appeal. By this time the decision of the Employment Appeal Tribunal in Christie had become well known and it is referred to in the judgment of Langstaff J. However, he did not address the substantive issue about Regulation 17. The appellant then sought permission to appeal to this Court. I considered the application on the papers. By then it had become apparent that the appellant was hoping to include both the time issue and the substantive issue in his proposed appeal. Initially, I refused permission to appeal and expressed the view that the appellant did not have a real prospect of success on the time issue. I also stated that I did not consider that this was an appropriate case for raising the substantive point in the Court of Appeal. However, I added:

“I could be persuaded to grant permission on the Christie point if, but only if, the respondent were to agree that this is a suitable vehicle for a test case on Regulation 17.”

It then transpired that the Department did agree that the present case is a suitable test case and, when the matter was referred back to me, I granted permission to appeal such as to enable the appellant to pursue both the time issue and the substantive issue. I was and remain persuaded that, if the appellant were to succeed on the time issue, it would become necessary for this Court to consider whether or not to remit the case to the Employment Tribunal. As it is the case for the Department that Regulation 17 does not fall to be disapplied, there would be no point in remitting the matter if the Department is correct. This is common ground.

Whilst these events were unfolding, another case raising the same point on Regulation 17 came before the Employment Tribunal in Bristol. In Miller v Ministry of Justice, the Employment Tribunal acceded to an application on behalf of the applicant for a reference of the Regulation 17 point to the European Court of Justice. The Department (by now the Ministry of Justice) had sought to resist a reference on the ground that in Christie Elias J had considered the point to be acte clair. Nevertheless, a reference was made, which prompted the Department to appeal to the Employment Appeal Tribunal against that decision. In Miller, that is where the matter rests. No-one has suggested that we should delay consideration of the present appeal. I propose to deal first with the time issue.

The Time Issue

The position relating to time limits in respect of a claim under the PTWR is set out in Regulation 8(2) and (3) which provide:

“(2)

Subject to paragraph (3), an Employment Tribunal shall not consider a complaint under this Regulation unless it is presented before the end of the period of three months … beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of the series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.

(3)

A Tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

The PTWR came into force on 1 July 2000. On 23 September 2004 an official in the Department wrote to the appellant giving notice of termination of his Recordership on 31 March 2005. On 9 June 2005 the appellant wrote to the Department and referred to the Directive. He stated:

“I require you not to discriminate against me as a part-time worker but to pay me a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full-time judges who had been engaged in the same or similar work. In my case the comparator was a full-time Circuit Judge … Please acknowledge receipt of this letter and let me have your proposals as soon as possible.”

On 5 July 2005 an official in the Department replied stating that Recorders fall outside the category of office holders to whom a pension is payable under the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993. She continued:

“Domestic law does not regard judicial office holders, whether full-time or part-time (or more accurately, fee-paid), as having an employment contract or employment relationship. Accordingly fee paid judicial office holders fall outside the ambit of the Directive. In any event fee-paid judicial office holders are expressly excluded from the ambit of the [PTWR] by Regulation 17.”

On 21 July 2005 the appellant replied setting out his argument by reference to the Directive before concluding:

“I repeat my request and, subject to advice, will issue proceedings if it is not met.”

On 29 July the Department replied noting the appellant’s comments but saying that there was nothing further that could usefully be added to the earlier response. On 7 August the appellant acknowledged that letter and added:

“Unless I hear from you to the contrary (or am otherwise so advised) I shall assume that the designation of the appropriate defendant is ‘The Department for Constitutional Affairs’ and that the Treasury Solicitor will accept service.”

By a letter dated 31 August 2005 the Department indicated that the Treasury Solicitor would accept service. Although we have been provided with a copy of that letter it was not produced before the Employment Tribunal or the Employment Appeal Tribunal.

The correspondence needs to be seen against the background of advice sought and obtained by the appellant at the time. The Employment Tribunal found that the appellant had little or no knowledge or experience of employment law and he began with an uninformed view that the time limit for claims under the PTWR was 6 months. In October 2004 he approached the Bar Council but did not receive advice from that source until February 2005 when he was told that he had 6 months in which to bring his claim from the date of his retirement. In other words he had until September 2005. However, by that time the appellant had obtained a copy of the PTWR. He became concerned when he saw Regulation 17 and he made a request of the DTI pursuant to the Freedom of Information Act 2000, seeking the rationale for Regulation 17. Meanwhile, the Bar Council advised him to approach the Equal Opportunities Commission which he did but he failed to get an immediate response. Following the negative response from the Department on 5 July 2005, the appellant consulted Ms Eleanor Sharpston QC, a leading authority on European Law, later to become Advocate General in the Court of Justice. She told him about Regulation 8 and the time limit and she advised that if the Department could rely on the time limit it ran from their letter of 5 July 2005 or possibly 30 June 2005. Of course, if either of those dates were correct, the commencement of proceedings in the Employment Tribunal on 29 September 2005 would have been within time.

The decision of the Employment Tribunal to the effect that the application was made out of time was explained in this passage:

“… his complaint relates to the denial of access as a part-time worker during his period of appointment as a Recorder. The complaint therefore relates to that period of time when he says he was eligible to and should have been allowed access to the pension scheme as a part-time judge. That period ended on 31 March 2005 when his appointment terminated. Time began to run from that date. The failure to pay pension on 30 June 2005 or on any later date is simply a consequence of that decision to exclude him from access to the pension scheme. The act of discrimination complained of, denial of access to the scheme while a Recorder, must be distinguished from the consequences of that act, a failure to pay him pension. The letter of 5 July 2005 does not in itself constitute a discriminatory act, or at least not one complained of in the ET. Even if the letter was a discriminatory act, it would not in itself give rise to the right to a declaratory judgment of entitlement to access to the judicial pension scheme.”

Although in the Employment Tribunal, the Employment Appeal Tribunal and in this Court, the appellant has contended for a later date for when time began to run, it is clear to me that the analysis of the Employment Tribunal and the Employment Appeal Tribunal was correct on this point.

The Chairman then turned to the exercise of discretion to extend time. He said:

“Although the claimant took reasonable steps to avail himself of legal advice, the fact is that when faced with conflicting advice on time limits, he did not investigate for himself, and he was in a position to do so I find, to see what the true position was. Thus he cannot claim to place reasonable reliance on the legal advice. Further, there was no evidence from the claimant that he relied on what the DCA or the DTI told him. In fact the reverse was true. He had looked at the Directive and Regulations, he had legal knowledge and experience, and he knew from his own professional experience about the implementation of EC Directives into UK law. However, having said all that, there are a number of important factors that in the end persuade me that I should exercise my discretion to extend time in this case. Commendably, the claimant did not immediately issue proceedings, but regarded these as something of a last resort, which is a proper view to take. He tried to resolve the matter by tackling the Respondent himself, by letter of grievance (in effect) dated 9 June 2005. That was a reasonable approach to take. Because of the delay in response to that letter, nearly four weeks, he then was in fact out of time with regard to his complaint. This to some extent mitigates that further period of delay from late July, when he received the last letter from the DCA, until late September, when he issued proceedings, because he was already out of time and further delay was not going to alter that position.

The Respondent can point to no prejudice by reason of the delay in issuing proceedings, save for the windfall jurisdictional defence. To strike out the Claimant’s claim under the PTWR would cause the Claimant substantial prejudice and the loss of the central part of his claim (although he still has the Equal Pay Act claim, which has a six month time limit). The fact is that the evidence is not going to be affected by the delay in any respect. Thus the length of the delay is not particularly relevant or very great … The reason for the delay until 29 July 2005 was because the Claimant was trying to resolve his claim without resorting to litigation. Further, if the Respondent is taken to be the Government as a whole, then they contributed to the delay. The DTI did not respond to the Claimant’s enquiries for five weeks and then refused disclosure under the Freedom of Information Act. The DCA also delayed their responses and may well have presented somewhat inaccurate information in their interpretation of the law … In all the circumstances, therefore, I am satisfied that the Claimant has shown that it would be just and equitable to extend time in his case to allow him to bring these proceedings. I therefore extend time for the presentation of his claim to 29 September 2005.”

Following the lodging of the appeal to the Employment Appeal Tribunal, and in pursuance of the common practice of that Tribunal, the Employment Tribunal was requested to amplify its reasons. The Chairman did so in a note dated 22 January 2007. It included this passage:

“… I took the view that having reasonably waited for a week or so for a reply to his letter of 7 August, the Claimant’s presentation of his claim some six weeks later, having in his mind the end of September as the last date on which he could prudently submit that claim, was not a fact that should prevent me from exercising my discretion to extend time. I weighed all the factors and circumstances in the equation, including the significant fact of absence of prejudice to the Respondent. I came to the conclusion that it was just and equitable to extend time to 29 September and that the case should be heard on its merits.”

In the Employment Appeal Tribunal, Langstaff J allowed the appeal of the Department. In order to do so, he needed to find an error of law in the decision of the Employment Tribunal. To that end, he said (at paragraph 92):

“… the Chairman in saying what he did in … his letter of 22 January 2007, that he was in effect looking for acts that should prevent him from exercising his discretion to extend time, was applying the wrong test. He should have been looking rather for reasons that might persuade him to extend time (see Robertson v Bexley Community Centre [2003] EWCA Civ 576, at paragraph 25).”

In Robertson Auld LJ said:

“A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.”

Thus, the error of law that Langstaff J considered to be present in the decision of the Employment Tribunal was one of relieving the claimant of an established burden of proof.

In my judgment, Langstaff J was wrong in his analysis on this point. In the decision of the Employment Tribunal, the Chairman had carefully set out the relevant legal principles. In paragraph 6 of the decision he stated:

“… the onus is always on the Claimant to convince the Tribunal that it is just and equitable to extend time; the exercise of discretion is the exception rather than the rule – see Robertson v Bexley Community Centre … . That case held that a Tribunal cannot hear a complaint unless the complainant convinces it that it is just and equitable to extend time.”

I do not read either the original decision or the amplified reasons contained in the letter of 22 January 2007 as disclosing any infidelity to that principle. Read in isolation and out of context, the language of “not a fact that should prevent me from exercising my discretion to extend time”, might cause some concern. However, the Chairman had set out the correct approach with care in his decision and, when one reads the relevant passage in the note of 22 January 2007 in full, it satisfies me that the Chairman approached the matter consistently with principle. Immediately after the words which concerned Langstaff J, the Chairman said:

“I weighed all the factors and circumstances in the equation … I came to the conclusion that it was just and equitable to extend time to 29 September … ”

I find that susceptible to the interpretation that the Claimant had convinced him that it was just and equitable to extend time. With great respect, I consider the approach of Langstaff J to be hypercritical on this point.

If the Employment Tribunal did not apply the wrong test, did it err in law in any other way? Langstaff J said (at paragraph 93):

“I accept that there was here an unexplained delay from mid-August until 29 September. There was an explanation; the claimant thought he was in time, but that explanation was specifically held to be an unreasonable one. No other explanation it seems was advanced or considered.”

I confess to an unease about this passage. The statement that “the Claimant thought he was in time” seems to refer to the advice of the Bar Council and of Leading Counsel which, though analytically different, pointed in both cases to time expiring at the end of September. I find it difficult to justify a conclusion that, because the appellant is a distinguished lawyer (albeit in a different field) who was also researching the matter for himself, it was unreasonable for him to rely on specialist professional advice, particularly that of Leading Counsel. Also, at least so far as the month of August is concerned, the appellant had written to the Department on 7 August, in effect enquiring about the identity of the appropriate Respondent and whether the Treasury Solicitor would accept service. That letter did not receive a timely response. Indeed, for all the Employment Tribunal and the Employment Appeal Tribunal knew, it did not receive a response at all, although we now know that by a letter dated 31 August the Department indicated that the Treasury Solicitor would accept service.

Langstaff J made other references to the chronology but, as I read his judgment, his finding of an error of law on the part of the Employment Tribunal turned substantially on his conclusion that the Employment Tribunal had applied the wrong test. His immediately ensuing paragraph about the Claimant unreasonably thinking that he was in time does not purport to identify another error of law on the part of the Employment Tribunal.

I have come to the conclusion that Langstaff J was not justified in finding that a decision of the Employment Tribunal to extend time was vitiated by an error of law. In saying that, I am not suggesting that generally in discrimination cases Employment Tribunals should take an indulgent approach to time limits, quite the contrary. In most such cases there are strong reasons for a strict approach. However, I consider that in the present case the Employment Tribunal was justified in taking a more relaxed view. In most circumstances, the consequence of allowing the present appeal would be to remit the case to the Employment Tribunal for it to proceed to the substantive hearing. However, Mr Cavanagh QC submits that we should not do that because, on any basis, the appellant’s substantive claim is bound to fail. He therefore invites us to decide the substantive issue about Regulation 17 and the position of Recorders under the PTWR. Mr Allen QC is also anxious that we should decide the issue. In these circumstances, we have agreed to do so. The jurisdictional peg upon which to hang this approach is that, having found an error of law on the part of the Employment Appeal Tribunal, it is appropriate for us to decide whether the appellant has a substantive claim worthy of remission.

It is necessary to set Regulation 17 in its statutory context. On 6 June 1997 the Union of Industrial and Employers Confederations of Europe, the European Centre of Enterprises with Public Participation and the European Trade Union Confederation concluded a Framework Agreement on part-time work. Its first purpose was to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work. Its provisions included the following:

“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.

Clause 3: Definitions

For the purpose of this Agreement:

1.

The term “part-time worker” refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.

2.

The term “comparable full-time worker” means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification – skills.

Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.

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.”

The purpose of Council Directive 97/81/EC was to implement the Framework Agreement.

Recital (16) of the Directive provides:

“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.”

Article 1 of the Directive stated the purpose of the Directive to be the implementation of the Framework Agreement. Article 2 required Member States to implement the necessary legislation by 20 January 2000. In fact, the PTWR came into force on 1 July 2000. A “worker” for the purpose of the PTWR 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 expressed) 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.” (Regulation 1(2)).

Regulation 2 is concerned with the meaning of “full-time worker”, “part-time worker” and “comparable full-time worker”. It provides:

“(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.

(3)

For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract –

…

(f)

Any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.”

The basic protection provided by the PTWR is set out in Regulation 5 in these terms:

“(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 grounds that the worker is a part-time worker, and

(b)

the treatment is not justified on objective grounds.”

Regulation 8 provides for the presentation of complaints to an Employment Tribunal and includes the time limit provision with which the earlier part of this judgment was concerned.

Part IV of the PTWR makes provision for “special classes of person”. Regulation 12, headed “Crown employment”, provides that, in general,

“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.”

Regulation 12(2) then provides that “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.”

There then follow provisions relating to the Armed Forces, House of Lords staff, House of Commons staff and the Police service. It is after that that Regulation 17, headed “Holders of Judicial Offices”, provides:

“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.”

As I related at the beginning of this judgment, (paragraph 4 above), Regulation 17 was considered by the Employment Appeal Tribunal in Christie v Department for Constitutional Affairs. Elias J (sitting alone) decided the issue in favour of the Department. The headnote summarises his judgment as follows:

“… there was no concept of ‘worker’ which had to be applied to all cases where it arose in the context of Community law, and both recital (16) of Directive 97/81/EC and Clause 2 of the Framework Agreement annexed to it envisaged that the meaning to be given to an employment relationship would be left to each Member State; … the discretion accordingly conferred on the United Kingdom by the Directive, while necessarily involving some limitation, afforded a reasonable leeway in defining who was a ‘worker’, and a minor limitation, such as the exclusion of a certain limited category of part-time judicial officers by Regulation 17 of the 2000 Regulations, was consistent with that discretion; and … , therefore, the 2000 Regulations did not apply to the claimant.”

In the Employment Tribunal in Christie the claimant had also contended that the Directive gave rise to a directly enforceable Community right such that a national court was bound to disapply a conflicting provision of domestic law. The argument was rejected by the Employment Tribunal. However, it was not considered by Elias J for procedural reasons (see paragraphs 22 and 23 of the judgment).

As the centrepiece of his submissions, Mr Allen advances an argument that was not considered in Christie. It is constructed on the fact that not all part-time judicial office holders are remunerated on a daily fee-paid basis. Some are salaried. This, submits Mr Allen, shows that those who are excluded by Regulation 17 are a subset of the larger group of judicial officers who are, by implication, included in the protection provided by the PTWR as “workers”. In his skeleton argument, Mr Allen puts the case in this way:

“As the [Directive] is an anti-discrimination measure, it is submitted that once a Member State has determined that the prohibition on discrimination against part-time work shall be applied to a particular class of work (here judicial work), it is outside the scope of that discretion to sub-define the field of application to only some, but not all, kinds of part-time work done by such workers.

It is only if the Member State can rely on an express provision in the [Directive] that such a further sub-derogation from the application of the [Directive] would be permissible.”

There being no such express provision (no reliance being placed on clause 2(2) by the respondent), it was not permissible to carve out any exception. Accordingly, we are obliged to disapply Regulation 17.

The archaeology of Regulation 17 is relevant. When draft regulations were published for consultation in January 2000, they did not include the provision that became Regulation 17. It first appeared in the document laid before Parliament in June 2000. It seems certain that the catalyst was the decision of the Northern Ireland Court of Appeal in Perceval-Price v Department of Economic Development [2000] IRLR 380 in which full-time, female, tribunal chairs succeeded in sex discrimination claims in respect of their pension arrangements, the Court holding that they were “workers” for the purposes of the sex discrimination legislation. The question arises: when the draftsman produced Regulation 17 in response to Perceval-Price, was that because it was accepted that judicial office holders are in principle “workers” within the meaning of the Directive and the PTWR and it was considered necessary to create a limited exception? Or was it simply a “belt and braces” provision to make doubly sure that daily fee-paid judicial office holders fall outside the PTWR?

Mr Allen submits that the former explanation is the correct one. He refers to a passage in the speech of Baroness Hale in Matthews v Kent and Medway Towns Fire Authority [2006] UKHL 8, [2006] ICR 365, at paragraph 36. Having compared part-time fire-fighters with daily, fee-paid judicial office holders, she said:

“The draftsman clearly foresaw that these part-time members of the judiciary would otherwise fall within the PTWR because he expressly excluded them by Regulation 17.”

Needless to say, any utterance of Baroness Hale commands respect but this passage was plainly obiter and, as Mr Allen is constrained to concede, she did not specifically consider the basis upon which it might be said that, in general, judicial office holders came within the PTWR.

It is plain that, as Elias J held in Christie, “worker” is not an autonomous concept in Community law and that, pursuant to the Directive, a Member State is empowered to adopt its own definition provided that, in so doing, it does not define the term “so narrowly … that the Framework Agreement … were deprived of any validity in practice and achievement of its purpose … were greatly obstructed” (per Mrs Advocate General Kokott in Wippel v Peek & Cloppenberg GmbH [2005] ICR 1604, at paragraph 45). Elias J has explained why, in principle, an exclusion of part-time fee-paid judicial office holders does not offend the Directive. I agree with his reasoning. In my judgment, it then becomes highly material to consider the domestic legal landscape into which the PTWR were introduced.

There is copious authority to support the proposition that a statutory office holder such as a judge is not employed under a contract (for example, Terrell v Secretary of State for the Colonies [1953] QB 482) and is not “in employment” within the meaning of the Sex Discrimination Act 1975 (Knight v Attorney General [1979] ICR 194). In Sheikh v Independent Tribunal Service (unreported, 16 March 2004), the Employment Appeal Tribunal, per Judge Peter Clark, held that part-time chairmen of social security tribunals were office holders rather than employees and were not Crown employees. None of these authorities is dispositive of the present case, but they do illustrate that it would have been ground-breaking if the PTWR were to have departed from their underlying assumption. Regulation 1(2) is in language that inhabits a different terrain from that exemplified by the “office holder” authorities. It defines “worker” in terms of a contract of employment (which a part-time judge does not have) or

“any other contract … 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 programme or business undertaking carried on by the individual.”

For good and obvious reasons, the purpose of that provision is to ensure that protection is not lost where the relationship is properly classified as one of employer/independent contractor, rather than employer/employee. It does not describe the work of a judge who does not undertake to do or perform personally work or services “for another party to the contract”. One asks rhetorically: Which other party? What contract?

Mr Allen’s alternative submission is that a part-time fee-paid judicial office holder is in “Crown employment” by reason of Regulation 12. However, 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.”

It would be wholly inimical to the independence of the judiciary if any judicial office holder were to be discharging his judicial functions “under or for the purposes of a government department or any officer or body exercising functions” on behalf of the Crown. As Mr Cavanagh wryly observes, the Crown is a party to every trial or indictment and is a party to some civil litigation.

All this leads me to the clear conclusion that it was not intended that any part-time judicial office holders were to be protected by the PTWR and that Regulation 17 was no more than a “belt and braces” provision prompted by the Northern Irish case. As Baroness Hale observed in Matthews (at paragraph 37), it is not at all uncommon for a prudent draftsman to add a provision on a “just in case” basis, which is essentially what was held in Matthews to have conditioned Regulation 2(3)(f) of the PTWR. Mr Cavanagh submits that we can gain further support for the “belt and braces” analysis from authorities concerning the interpretation of tax statutes.

In Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531, Lord Macnaghten said (at page 589):

“It is not so very uncommon in an Act of Parliament to find special exemptions which are already covered by a general exemption.”

More recently, in Walker v Centaur Clothes Ltd [2000] 1 WLR 799, Lord Hoffmann said (at page 805D):

“I seldom think that an argument from redundancy carries great weight, even in a Finance Act. It is not unusual for Parliament to say expressly what the courts would have inferred anyway.”

In my view, even without Regulation 17, the line of authority to which I referred in paragraph 47, above, would have ensured the interpretation that part-time judges were not “workers” for the purposes of the PTWR.

There is a further factual, contextual matter which convinces me that the above conclusion is correct. In 2000 there were no salaried part-time judges. They were all fee-paid on a daily basis. This refutes the suggestion that the PTWR created a sub-set of part-timers in Regulation 17 and thereby subjected them to less favourable treatment. I am satisfied that the correct analysis is that no judicial office holder is protected by the PTWR and that Regulation 17 was inserted, out of an abundance of caution, to make doubly sure that the only type of part-time judge then in existence – the daily fee-paid - was excluded, having regard to the risk then recently illustrated by the decision of the Northern Ireland Court of Appeal in Perceval-Price. For the reasons given by Elias J in Christie, it was, in any event, well within the discretion of a Member State to exclude part-time judges from the protection of the PTWR.

It follows from what I have said that, in my judgment, (1) the Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but (2) we should decline to remit the case to the Employment Tribunal for a substantive hearing because the claim would be bound to fail. This gives rise to an unusual situation as regards the appropriate order. Subject to any contrary submissions in writing, I propose an order which (i) allows the time limit appeal; (ii) includes a declaration that the appellant is not protected by the PTWR; and (iii) remits the case to the Employment Tribunal with a direction that the application by reference to the PTWR be dismissed. It is implicit in what I have said that I do not consider that this case calls for a reference to the European Court of Justice – a point which is formally still a live issue in the appeal to the Employment Appeal Tribunal in Miller.

I agree.

I also agree.