Fighting Fire with … The Law
Labour & European Law Review Weekly issue 110 - April 2006 12 April 2006
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 and are employed on the same type of contract.
In Mathews & ors -v- Kent and Medway Towns Fire Authority & ors, the House of Lords has decided that retained (or part-time) firefighters qualify to make a claim under the regulations.
The employees’ union, the FBU, instructed Thompsons to act on their behalf.
Why did the part timers complain?
The retained firefighters claimed that they were being treated less favourably than full timers:
- 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.
What did the lower courts decide?
The employment tribunal and the appeal tribunal decided (LELR 85) that the retained firefighters were employed under different types of contract from the full timers – group (f) rather than group (a).
In addition, they said they were not engaged in the same or even broadly similar work because the full timers carried out a number of additional responsibilities.
The Court of Appeal (LELR 92) agreed that the two groups were not engaged in the same or even broadly similar work because the ful-time firefighters had a “fuller, wider job” than retained firefighters, and “measurable, additional job functions”, which accounted for the differences in qualifications and skills.
It decided, however, that the two groups were employed under contracts that fell into group (a).
Do they have the same contracts?
The House of Lords said: “that the question [of] whether a full-time worker is employed under the same type of contract as a part-time worker is to be approached broadly.”
An “over precise” view would undermine the whole point of the regulations and would allow employers to exclude employees from the regulations by setting different terms and conditions.
The job for the courts was to decide whether both workers were employed under contracts that fitted into one of the categories. In this case, it agreed that both groups were employed under category (a).
It said that paragraph (f) existed simply as a “catch-all” to fill any gaps left by the preceding categories, emphasising that it was “not designed to allow employers to single out particular kinds of part-time working arrangements and treat them differently from the rest.”
Do they do similar work?
The House of Lords said that the fact that full timers perform some extra tasks does not mean their work cannot be “the same or broadly similar” to the part timers.
Otherwise, it pointed out, courts will simply give “too much weight to differences which are the almost inevitable result of one worker working full time and another working less than full time.”
This was the mistake that the lower courts had made. Instead of focusing on differences, they should have looked at whether the work done by both groups could be described as broadly similar, despite the fact that the whole-time firefighter had a “fuller and wider” job.
Contracts under the Regulations
(since amended to remove the distinction between fixed-term and non-fixed-term contracts)
- employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship
- employees employed under a contract for a fixed term that is not a contract of apprenticeship
- employees employed under a contract of apprenticeship
- workers who are neither employees nor employed under a contract for a fixed term
- workers who are not employees but are employed under a contract for a fixed term
- 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
Doherty -v- British Midlands Airways Ltd