Employment Appeal Tribunal

Published September 4, 2007

Christie v Department for Constitutional Affairs and Another

Before Mr Justice Elias, President

Judgment July 23, 2007

Part-time fee-paid tribunal chairmen were not workers and were not entitled to a pension.

Mr Justice Elias, President of the Employment Appeal Tribunal, so held sitting alone when dismissing an appeal by the claimant, Mr Ronald Christie, from a decision of a Cardiff employment tribunal in February, that as a matter of domestic law he was excluded from pension rights by the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (SI 2000 No 1551) and that European law did not require them to be construed differently.

Mr Ramby de Mello and Mr Adrian Berry, instructed by direct access, for Mr Christie; Mr John Cavanagh, QC, for the Department for Constitutional Affairs.

MR JUSTICE ELIAS said that the claimant was a fee-paid part-time chairman of the National Insurance and Social Security Tribunals until 2005.

His appointment was by the Lord Chancellor although the Department for Work and Pensions had administrative responsibility for the tribunals which he chaired. There were also full-time and part-time salaried chairmen who had pensionable service.

The difference between part-time salaried and part-time fee-paid chairmen was that the former were obliged to sit on days agreed in advance whereas the latter could choose whether to work on a particular day.

The aim of the 2000 Regulations was to ensure part-time workers were 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 12 made those regulations applicable to workers in Crown employment; regulation 17 excluded any individual in his capacity as the holder of a judicial office if he was remunerated on a daily fee-paid basis. The 2000 Regulations were designed to implement the Part-Time Workers Framework Directive (97/81/EC) (OJ 1989 L14/9).

Mr de Mello had conceded that if it were simply a matter of domestic law the claimant would not be able to bring himself within the statutory provisions. The natural construction of regulation 17 would exclude him.

The issues were: was there a single concept of “worker” which had been adopted for all purposes in European law and if so would it include the claimant?

If not, and the United Kingdom had a discretion to adopt its own definition, could part-time fee-paid judicial officers be excluded or would that be incompatible with the purposes of the Directive? If the regulations did conflict with the Directive, was it possible to construe the regulations so as to be compatible with European law?

It was impossible to contend that there was a concept of “worker” which had to be applied in all cases where the concept arose in European law.

The question was whether the exercise of discretion had been exceeded in the present circumstances. The Directive gave protection to those defined as relevant workers under domestic law. Member states were accorded reasonable leeway.

In the present case there was a minor limitation excluding a certain limited category of part-time judicial officers. The exclusion was consistent with the discretion given by the Directive to member states.

The issue as to whether the regulations could be read compatibly with European law did not arise given the previous conclusions. Briefly, domestic legislation could only be interpreted in accordance with the principles of Community law in so far as it was possible to do so. There was no possible construction of regulation 17 which could secure harmony between the two and the claimant would have failed on that count.

Solicitors: Treasury Solicitor.

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