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Critical Remark was Wrong
Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part timers have to be treated the same as full timers, if they do similar work and are employed on the same type of contract.
In Mathews & ors -v- Kent and Medway Towns Fire Authority & ors, the House of Lords has decided that retained (or part-time) firefighters qualify to make a claim under the regulations.
The employees’ union, the FBU, instructed Thompsons to act on their behalf.
The retained firefighters claimed that they were being treated less favourably than full timers:
• by being denied access to statutory pension arrangements
• by being denied increased pay for additional responsibilities
• in the way their sick pay arrangements were calculated.
The employment tribunal and the appeal tribunal decided (LELR 85) that the retained firefighters were employed under different types of contract from the full timers – group (f) rather than group (a).
In addition, they said they were not engaged in the same or even broadly similar work because the full timers carried out a number of additional responsibilities.
The Court of Appeal (LELR 92) agreed that the two groups were not engaged in the same or even broadly similar work because the ful-time firefighters had a “fuller, wider job” than retained firefighters, and “measurable, additional job functions”, which accounted for the differences in qualifications and skills.
It decided, however, that the two groups were employed under contracts that fell into group (a).
The House of Lords said: “that the question [of] whether a full-time worker is employed under the same type of contract as a part-time worker is to be approached broadly.”
An “over precise” view would undermine the whole point of the regulations and would allow employers to exclude employees from the regulations by setting different terms and conditions.
The job for the courts was to decide whether both workers were employed under contracts that fitted into one of the categories. In this case, it agreed that both groups were employed under category (a).
It said that paragraph (f) existed simply as a “catch-all” to fill any gaps left by the preceding categories, emphasising that it was “not designed to allow employers to single out particular kinds of part-time working arrangements and treat them differently from the rest.”
The House of Lords said that the fact that full timers perform some extra tasks does not mean their work cannot be “the same or broadly similar” to the part timers.
Otherwise, it pointed out, courts will simply give “too much weight to differences which are the almost inevitable result of one worker working full time and another working less than full time.”
(since amended to remove the distinction between fixed-term and non-fixed-term contracts)
Doherty -v- British Midlands Airways Ltd