McMenemy-v- Capita Business Services Ltd
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that employers cannot treat part-time workers less favourably than full timers, unless the different treatment can be objectively justified.
In McMenemy -v- Capita Business Services Ltd, the employment appeal tribunal (EAT) said that, although Mr McMenemy had been disadvantaged in comparison to full-time workers, this was not because he was a part timer.
Mr McMenemy’s union, Bectu, instructed Thompsons to act on his behalf.
What were the basic facts?
Mr McMenemy worked full time from 1998 as a researcher for a company that operated a series of call centres, seven days a week. In April 1999 the company agreed that he could work part time – Wednesday-Friday – because he had child care responsibilities.
He was not, however, allowed time off in lieu when public holidays fell on Mondays. The company relied on clause nine of his contract, which said that employees were only entitled to those days when they fell on a “normal working day.”
Mr McMenemy claimed he was entitled to public holidays on a pro rata basis and had been treated less favourably under the regulations.
What did the tribunal decide?
The tribunal agreed that Mr McMenemy had been treated less favourably, but not because he was a part-time worker. He was not therefore protected by the regulations.
Instead, it was because clause nine of his contract provided that employees were entitled to public holidays only “ …where these fall on your normal working day………”.
This applied to both full-time and part-time employees. For instance, Mr McMenemy’s manager, Mr Keeman, had worked full time for a while about a year before, from Tuesday to Saturday, and did not get the benefit of Monday public holidays.
What did the parties argue on appeal?
Mr McMenemy argued that the regulations required the tribunal to compare his situation with that of a current, comparable full-time employee, not a hypothetical one. He also said that the pro rata principle was built into the regulations and that the company was therefore obliged to apply it.
The company, however, said that Mr McMenemy had conflated the two questions that the tribunal had to answer, which were:
• had he been treated less favourably?
• if so, was this because he was a part timer?
There was a clear policy in place that did not allow employees the benefit of a Monday bank holiday if they did not work that day. This applied whether or not the employee worked part time or full time, as the case of Mr Keenan, a member of Mr McMenemy’s team, showed.
What did the EAT decide?
The EAT said the tribunal had been right to decide that Mr McMenemy had been treated less favourably, but this was not because he was a part-time worker. The difference in treatment was because he did not work on Mondays.
It said that, at this point, the tribunal was entitled to consider whether a hypothetical full-time employee, who did not work Mondays, would have been treated any differently. It had considered all the evidence and decided that the terms of a full timer’s contract would have been the same as that of a part timer, as the example of Mr Keenan showed.
Finally, the EAT rejected the argument that the regulations gave Mr McMenemy a “stand-alone” right to pro rata treatment as regards holidays. This was not something that a tribunal had to consider when deciding whether or not the less favourable treatment was because the employee was a part timer. The union is seeking leave to appeal the decision.