Editorial from IDS Brief 850, April 2008

Widening the scope of part-timer protection

A recent TUC report, ‘Closing the Gender Pay Gap’, contained the statistic that Britain, with 7.5 million part- time workers, has one of the highest proportions of this type of work in Europe. The report went on to note that more than three quarters of these workers are women, that the majority of the jobs involved are low-skilled and low-paid, and that these factors contribute to a pay gap of up to 40 per cent between women part-timers and men working full time.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI 2000/1551 were brought in to help remove discrimination against part-time workers and to improve the quality of part-time work. The effect of the Regulations is that part-timers (including male part- timers) can claim parity of treatment with their full-time counterparts. Importantly, they have rights as part-timers rather than as members of a particular gender group, and do not have to resort to complex sex discrimination and equal pay legislation to assert parity. Given the potential impact of the Regulations – in particular, increased costs for employers – it is not surprising that there have been some attempts to limit their application. However, recent decisions demonstrate that tribunals and courts in England and Wales are playing their part in ensuring that the Regulations’ protection is not undermined.

‘Reason for treatment’ test

It is unlawful for an employer to treat a part-timer less favourably than a comparable full-time worker ‘on the ground that the worker is a part-time worker’ – Reg 5. In Gibson v Scottish Ambulance Service (Brief 776), the EAT in Scotland held that a worker had not been subjected to a detriment on the ground of his part-time status because that status was not the ‘sole reason’ for the treatment complained of. This interpretation reduced the scope of the Regulations by denying protection to part-timers subjected to less favourable treatment where their part-time status was only one of the reasons for their being treated less favourably.

The EAT in England has now departed from that decision. In Sharma and ors v Manchester City Council, reported on page 11 of this Brief, the EAT held that part-time status need not be the sole reason for less favourable treatment in order for that treatment to be in potential breach of Reg 5. Rather, once it is found that a part-timer is treated less favourably than a comparable full-timer, and that being part time is one of the reasons for that less favourable treatment, the protection of the Regulations will be engaged. So, in rejecting the narrow interpretation adopted by Gibson, the EAT in Sharma has brought part-timer protection more into line with other grounds of discrimination.

It is worth noting, however, that neither the tribunal nor the EAT in Sharma had their attention drawn to the fact that Gibson was subsequently applied by the Court of Session in McMenemy v Capita Business Services Ltd 2007 IRLR 400. Court of Session decisions, while not binding on the English EAT, are of great persuasive authority, and tribunals might therefore be in some doubt as to which is the correct position. Although the EAT’s stance in Sharma was set out in meticulous detail by the President of the EAT, the Honourable Mr Justice Elias, ideally the Court of Appeal will at some point have an opportunity to rule on which approach is to be preferred.

Tribunal revisits comparator issue

Meanwhile, the most high-profile part-timers case to date has recently returned to the employment tribunal. In Matthews and ors v Kent and Medway Towns Fire Authority and ors (Brief 801), the House of Lords held that a tribunal was incorrect to conclude that minor differences in the work done by part-time ‘retained’ firefighters and their full-time colleagues meant that they were not engaged in ‘the same or broadly similar work’ for the purpose of making a valid comparison under the Regulations. The case was accordingly remitted for the tribunal to decide these issues in the light of their Lordships’ ruling. The London South Employment Tribunal has now given judgment, finding for the claimants.

The tribunal found that there was a regular body of work that was the same for both retained and full-time firefighters; namely, putting out fires and carrying out various other duties such as fire hydrant inspection and maintenance. As to the differences, while the full-timers might carry out some duties more quickly, partly as a result of their greater training and qualifications – a potentially relevant factor under Reg 2(4) – this difference flowed mainly from the unavoidable fact that they did those duties more often. The tribunal concluded that there were no significant differences between the two groups, and allowed the retained firefighters to compare themselves with their full-time counterparts. It went on to uphold the retained firefighters’ claim to have been unjustifiably less favourably treated as regards access to pensions and sick pay.

Claims may be easier to bring

At the time of the House of Lords’ judgment in Matthews we suggested that their Lordships’ comments regarding the key concepts of ‘the same type of contract’ and ‘broadly similar work’ had lowered the threshold for claims under the Regulations, opening the door for more part-timers to achieve parity of treatment with their full-time counterparts. The tribunal’s approach in the remitted hearing suggests that this is indeed the case. So, while Matthews makes it easier for claimants to get claims off the ground, Sharma makes it easier for them to go on to establish unlawful less favourable treatment.