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 they can justify it.
In McMenemy -v- Capita Business Services Ltd, the Scottish Court of Appeal (the Court of Session) 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.
Basic facts
Mr McMenemy worked full time from 1998 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 to 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 than a full-time worker under the regulations.
Tribunal and EAT decision
The tribunal agreed that Mr McMenemy had been treated less favourably, but only because he did not work Mondays, and not because he was a part-time worker.
Clause nine of his contract 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.
The EAT agreed. It said that 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. The pro rata principle related only to the question about whether the part timer had been treated less favourably than a full timer.
Arguments on appeal
Mr McMenemy argued that, as a part timer working a fixed shift of Wednesday to Friday, he should only have been compared to full-time comparators who worked a fixed shift on Mondays to Fridays. It was then obvious that the only real ground for his less favourable treatment was his part-time status.
The company, on the other hand, argued that the tribunal was right to decide that the sole and only reason for the less favourable treatment must be that the disadvantaged person worked part-time.
Court of Session decision
The Court of Session agreed that the appropriate comparators were the full-timers in the team, who worked from Mondays to Fridays. In comparison, Mr McMenemy was treated less favourably because he did not receive the benefit of statutory holidays which fell on Mondays.
It said that tribunals should then apply the pro rata principle at this stage. In other words, if Mr McMenemy had received a pro rata amount of time off in lieu of Monday statutory holidays, he would not have been treated less favourably.
The next question, however, was whether this less favourable treatment was solely because he worked part time. Tribunals should ask themselves whether the employer intended to treat him less favourably for the sole reason that he was a part-time worker. The Court of Session agreed with the tribunal and EAT that the reason he received less favourable treatment was that he had agreed not to work for the company on Mondays or Tuesdays.
Tribunals should then consider hypothetical situations, in order to test the company’s true intentions. In this case, if a full-time member of Mr McMenemy’s team worked a fixed shift from Tuesday to Saturday, they would not get the benefit of holidays that fell on Monday. But if a part-time member worked on Mondays, they would receive the benefit. The Court therefore dismissed the appeal.