Partly regulated

Carl v University of Sheffield

The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that part time workers must not be treated less favourably than full timers “on the ground that” they work part time. In Carl v University of Sheffield, the Employment Appeal Tribunal (EAT) said that part time claimants do not have to show that the less favourable treatment was solely because of their part-time status, but they must be able to point to a real full-time comparator, not a hypothetical one.

Basic facts

Mrs Carl worked as a part-time shorthand teacher in the university’s journalism department. She complained that she had been treated less favourably than Ms McClelland, a full-time teacher in the sociological studies department, who was paid for preparation time whereas she was not. She claimed that she was therefore being paid less pro rata than Ms McClelland, or alternatively any hypothetical comparator (a “generic teacher”) on a university teacher’s contract.

Relevant legislation

Regulation 2(4) says that a comparable full-time worker is someone who works for the same employer under the same type of contract and is “engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience”.

Regulation 5(2) provides that the right conferred by regulation 5(1) (no less favourable treatment) applies only if –
“(a) the treatment is on the ground that the worker is a part-time worker …”

Tribunal decision

The tribunal decided that Ms McClelland was not a proper comparator for a number of reasons: Ms McClelland’s contribution was both vocational and academic whereas Mrs Carl’s teaching was purely vocational; Ms McClelland had two MAs and was preparing for a PhD degree, whereas Mrs Carl had a B.Ed (teaching); and Ms McClelland taught up to PhD level whereas Mrs Carl just taught to NVQ3 (A level) standard. It concluded that Mrs Carl had not, therefore, been treated any less favourably than Ms McClelland or any hypothetical comparator.

It also decided that in accordance with the EAT decision in Gibson v Scottish Ambulance Service, Mrs Carl had failed to show that her less favourable treatment was “solely” (the word used in the Directive which the regulations were meant to implement) because she was a part-time worker. This was reinforced by the requirement in regulation 5(2) that the treatment is “on the ground” as opposed to “grounds” that she was a part time worker.

EAT decision

Hypothetical comparator – The EAT said that the first issue was whether Mrs Carl could rely on a hypothetical comparator at all. It noted that claimants can rely on such a comparator under sex and race discrimination legislation, but not under the Equal Pay Act. So which approach applied to the part time workers regulations? It decided that there had to be an actual comparator as regulation 2(4) requires claimants to compare themselves to a “comparable full time worker.” This was also in line with the Part Time Workers Directive which did not allow for hypothetical comparators.

Real comparators – Applying Matthews v Kent & Medway Towns Fire Authority (which emphasised the similarities between the work done by part-time and full-time firefighters, not the differences), the EAT said that the tribunal was right to decide that Mrs Carl could not use Ms McClelland as a real, true comparator because whilst both of them taught students at the University, the EAT said that the tribunal was entitled to take into account “the differences in what they taught, their job specifications and how they taught”.

On one ground or more – The EAT said that the less favourable treatment did not have to be just because of the claimant’s part time status. Rejecting the approach in Gibson and preferring Sharma v Manchester City Council, it decided that “part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause.”