The law says that part-time workers cannot be treated less favourably than comparable full-timers who are employed by the same employer on the same type of contract. In The Advocate General for Scotland v Barton, the Court of Session held that a part time worker cannot compare themselves to another part-time worker even if that person has been assessed as a full timer for other purposes.
Mr Barton, a solicitor, worked for about four hours each week as a clerk to the General Commissioners of Income Tax for many years. Although he had no right to a pension (he was a worker, not an employee), the Secretary of State for Scotland had a discretionary power under section 3(3) of the Taxes Management Act 1970 to award a pension to a full-time clerk.
When Mr Barton retired in 2009, he applied for a pension but was refused on the basis that he could not be classed as full-time within section 3(3) as he could not show that he spent “substantially the whole of his time [on] the duties of his office”. “Substantially” was taken to mean at least 70 per cent of a normal working week.
Mr Barton lodged a claim under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 on the basis that another part-time clerk, Mr Howey, who had worked three and a half days per week, was awarded a pension some years earlier.
Tribunal and EAT decisions
The tribunal rejected Mr Barton’s claim on the ground that Mr Howey was not a suitable comparator under the regulations as he was a part-time worker. However, the EAT allowed the appeal on the basis that it was discriminatory to grant the possibility of a pension to a full timer while denying it to a part timer. Applying the Marleasing principle (which requires courts to interpret domestic legislation so that they give effect to a European directive), the judge said that section 3(3) should be ”read down” as if the words “full-time” were not there.
Decision of Court of Session
However, the Court of Session (the equivalent of the Court of Appeal in England and Wales) disagreed, holding that Mr Howey was a part-time worker and could not therefore be used as a comparator. Nor did it agree that section 3(3) was discriminatory. Firstly, it did not allow for different treatment between part-time and full-time workers as it was only concerned with clerks and secondly, it allowed for the possibility of granting a pension to a limited category of part-time clerks.
As regards the Marleasing principle, the Court held that the redraft of the Act proposed by the EAT was so radical that it would undermine Parliament’s clear intention which was to pay pensions to full-time clerks as well as some part-time clerks who could be treated as though they were full-timers. It would also distort the part-time regulations to such an extent that it would not be an appropriate application of Marleasing. It concluded that there are limits to what can be done by the court to amend the expressed will of Parliament as set out in its legislation and courts must therefore take care to ensure that they are not legislating under the guise of reading down.
This case is one of several which have dealt with the application of the Marleasing principle recently. It was given quite a broad application in Larner v NHS Leeds (weekly LELR 285) and Fulton v Bear Scotland (weekly LELR 397), but this is an example of the Courts pulling back from any accusation that judge-made law is filling the gaps between UK and European legislation. Judges may have an eye on the forthcoming referendum when deciding how far Westminster’s sovereignty reaches.