Fighting fire with...the law

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. In Mathews & Ors v Kent and Medway Towns Fire Authority & Ors (IDS Brief 761), however, the Court of Appeal has decided that part-time firefighters don't do the same work as full-timers, although they are employed on the same sort of contracts.

The employees' case was backed by Thompsons.

What was the complaint of the part-timers?

The part-time (or 'retained' firefighters) claimed that they were being treated less favourably than full-timers in a number of ways:

• 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

To succeed in their claim, they had to show that they were employed on the 'same type of contract' as their full-time comparators. And that they were engaged in the 'same or broadly similar work'.

On the face of it, this might not seem too difficult to prove because retained firefighters respond to a call-out system to fight fires in much the same way as full-timers. Not so.

What did the tribunals decide?

The employment tribunal decided that the retained firefighters were employed under different types of contract from the full-timers group (f) rather than group (a) (see box).

In addition, they said they were not engaged in the same or even broadly similar work because of the additional responsibilities of the full-timers.

The employment appeal tribunal agreed, stating that 'there was clearly ample material upon which the employment tribunal could find that the retained firefighters and full-time firefighters were employed under different types of contract of employment and that it was reasonable for the employer to treat them differently'.

What did the Court of Appeal decide?

The first issue for the Court of Appeal to unravel was the issue of comparability. In other words, were the full-time and retained firefighters employed under the same type of contract?

The Court of Appeal said that both groups were employed under contracts that were not fixed-term, nor were they contracts of apprenticeship. That meant they fell into the same category under the regulations group (a).

The Court then moved onto the second issue were the two groups engaged in the same or similar work? The employment tribunal found, as a matter of fact, that fighting fires was 'the central and most important job function of the retained firefighter', but was no more than 'a major part of the job role of the whole time firefighter', who had a range of other functions to perform. It also said there were material differences in the levels of qualifications and skills between the two groups.

And the Court of Appeal agreed. It said that full-time firefighters do have a 'fuller, wider job' than retained firefighters, and have 'measurable, additional job functions', which account for the differences in qualifications and skills.

In addition, it found differences in relation to entry standards, probationary standards, probationary training and subsequent training.

As a result, the appeal was dismissed.