Matthews & Others v (1) Kent and Medway Towns Fire Authority (2) Royal Berkshire Fire and Rescue Service and (3) the Secretary of State for the Home Department. IDS Brief 743 October 2003, [2003] IRLR 732

In its first decision under the Part-Time Workers (Prevention of Less Fav-ourable Treatment) Regulations 2000 (the "PTWR"), the Employment Appeal Tribunal has upheld an Employment Tribunal decision that retained firefighters are not able to claim parity of treatment and contractual terms with their whole time colleagues. In a disappointing judgment the loopholes in the law are exposed.

Retained firefighters have fixed weekly maintenance and drill commitments. They tend to have other jobs and respond to a "call-out" system for operational duties normally by bleeper. Wholetime firefighters work under a shift system. Both are covered by the same national terms and conditions and both are indistinguishable, even to firefighters, when they are working.

After the PTWR came into force on 1 July 2000, some 12,000 retained firefighters (RF), backed by the FBU, lodged claims with Tribunals claiming that they were treated less favourably than their whole time colleagues in relation to access to the Firemens' Pension Scheme, sick pay and additional responsibilities pay.

Under the PTWR, an applicant must show that they are a "part-time" worker; their comparator is a "comparable full-time worker"; and any less favourable treatment is on the ground that the applicant was a part-time worker.

For a "part-time" worker to be able to cite a "comparable full-time" worker the "full-time" worker has to be employed under the "same type of contract"; and both workers have to be engaged in "the same or broadly similar work having regard where relevant to qualifications, skills and experience".

The "same type of contract" refers to categories such as employee, worker or apprentice. There is then a further distinguishing type of contract: "any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract."

The EAT, upholding the Tribunal decision and dismissing the claims, found that: 

  • although RFs and their whole time colleagues were both "employees", it was reasonable for fire brigades to treat them differently on the ground that they had a different type of contract 
  • the work of RFs and their whole time colleagues was not "the same or broadly similar" 
  • the reason for the difference in treatment was because of the RFs part-time status; and 
  • the Secretary of State was not able to justify objectively the difference in treatment (although this did not matter because the whole timers were not "comparable full-time" workers).

 

The EAT rejected the RFs argument that as they and their whole time colleagues were both "employees", it was not possible for either to fall within "any other type of contract..." for the purpose of regulation 2(3)(f). The EAT also allowed the brigades to use factors such as the different amounts of time spent attending fires, variable work patterns, differing amounts of fire safety work and different recruitment and selection procedures to justify the differential treatment of retained and whole time firefighters on the ground that they had a different type of contract. The EAT then rejected the RFs' argument that the "core" of the two jobs was the same: fighting fires. Instead, it found that whole timers had a "fuller wider role and [a] higher level of skills and qualifications".

This is a very disappointing decision. It suggests a narrow, legalistic approach to the PTWR enabling miniscule distinctions between jobs to be accumulated and used as a reason to treat part-timers less favourably than their whole time colleagues. The RFs have permission to appeal to the Court of Appeal and the case will be heard at the end of March 2004.