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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Roddis v Sheffield Hallam University [2018] UKEAT 0299_17_2603 (26 March 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0299_17_2603.html Cite as: [2018] UKEAT 0299_17_2603, [2018] UKEAT 299_17_2603 |
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At the Tribunal | |
Before
HER HONOUR JUDGE STACEY
(SITTING ALONE)
![]() | APPELLANT |
![]() ![]() ![]() ![]() ![]() | RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAVID MASSARELLA (of Counsel) Instructed by: Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
For the Respondent | MR NIGEL GRUNDY (of Counsel) Instructed by: Eversheds LLP Eversheds House 70 Great Bridgewater Street Manchester M1 5ES |
SUMMARY
PART TIME WORKERS
A worker employed under an associate lecturer's contract of employment described by the Employment Tribunal as a zero-hours contract, was employed under the same type of contract as a lecturer on a full-time contract for the purposes of Regulation 2(2) and 2(4)(a)(i) Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The Employment Tribunal had erred in concluding that Wippel v
Peek & Cloppenburg GmbH & Co KG [2005] IRLR 211 ECJ led to the conclusion that the Claimant and his full-time comparator were not employed on the same type of contract.
The case is remitted to the Tribunal to determine whether the part-time worker is engaged in the same, or broadly similar, work pursuant to Regulation 2(4)(a)(ii) and, if so, whether he has been subjected to unjustified less favourable treatment contrary to Regulation 5.
The following principles as to the proper approach to Regulation 2(3) for the purposes of Regulation 2(2) and 2(4) emerge from the case law[1]:
- Regulation 2(3) provides a comprehensive list of categories of different types of contract for the purposes of paragraphs 2(1), (2) and (4);
- The categories in Regulation 2(3) are broadly defined and, since the purpose of the Regulation is to provide a threshold to require a comparison of full and part-time workers to take place, the threshold is deliberately set not too high;
- A contract cannot be treated as being of a different type from another just because the terms and conditions that it lays down are different, nor because an employer chooses to treat workers of a particular type differently;
- Where a worker and his or her comparator are both employed under contracts that answer to the same description given in the same paragraph in Regulation 2(3), they are both to be regarded as employed under the same type of contract for the purposes of Regulation 2(4);
- In order to satisfy the requirements of Regulation 2(4)(a)(i), it is not necessary to go further than to find that both workers are employed under contracts that fit into one or other of the listed categories;
- The categories are designed to be mutually exclusive;
- The category in Regulation 2(3)(d)[2] is a residual category. It refers to a description of worker who is different from those mentioned in categories (a) to (c) and does not apply to a worker who falls into one of those categories. An example of a description of worker who would fall within category (d) has yet to be identified. A zero-hours contract is not, of itself, a type of contract.
HER HONOUR JUDGE STACEY
"4. The only comparator put forward by the claimant in respect of his complaint under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Mark Leader) is not a comparable full time worker as defined by regulation 2(4)(a)(i) because Mr Leader is not employed under the same type of contract as the claimant.
5. Accordingly the complaint brought under regulation 5 of the 2000 regulations (the only complaint brought under those regulations) must also fail and is struck out."
"3.4. Was the claimant's proposed comparator for the Part-Time Workers complaint an appropriate comparator as defined by Regulation 2(4)(a)(i) of the 2000 Regulations - were the claimant and his comparator employed under the same type of contract?"
"4.1. On 6 February 2006 the claimant signed the contract of employment which is set out at pages 45-52 in the bundle. Although that contract does not immediately advertise itself as a zero hours contract - there is no warning to that effect on its face - theview
of this Tribunal is quite clearly it was a zero hours contract and that much is plain from clause 6. Clause 6 deals with hours of work and provides:
"Your hours of work will be as defined by the offer of work on the SHU 5a form. Your hours of work willvary
according to the workload of the
University's
business. You therefore acknowledge that there may be periods when no work is available and the
University
has no obligation to provide you with any work or to provide a minimum number of hours in any day or week. However, the
University
will endeavour to allocate suitable work to you when it is available.
You agree to work for such hours each year which may be as few as zero hours per week as shall, in each case be notified to you in writing (via
the SHU 5a form) by the
University
at least 1 month before the commencement of the academic year/next semester, provided that:
6.1.1. If no such notification is provided to you it will be presumed that you will work zero hours during the next academic year/next semester
6.1.2. You may agree with your Director of School to accept a shorter period of notification in respect of any Semester
6.1.3. Notification of the hours you work in the first semester of your employment hereunder shall be attached to this Contract and shall bevalid
notwithstanding that it may have been provided to you within 1 month of the commencement of that Semester." "
The paragraph goes on to deal with the provisions of clause 6.2 and the notice provisions, which are not necessary for the purposes of this Judgment. The contract provided that his responsibilities were to undertake a range of teaching and related duties determined by his manager from time to time including preparation of lectures/schemes of work/up to date relevant materials, marking, assignment and exam setting and marking and operation of quality procedures, all to the highest professional standards.
"Regulation 2 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 defines comparable full-time worker. Regulation 2(4) provides:
"A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place -
(a) both workers are:
(i) employed by the same employer under the same type of contract …" "
The Tribunal Decision continues:
"We pause there because we are not required to consider the remaining aspects of the definition in terms of the same or broadly similar work. We have found that the claimant was employed under a zero hours contract and we have asked to see and now have seen the contract of Mr Leader, which at the material time was a contract which provided him with permanent employment as an academic lecturer as opposed to an associate lecturer. On the authority of the European Court of Justice's judgment in Wippelv
Peek & Cloppenburg GmbH [2005] IRLR 211, we find that Mr Leader is not a comparable full time worker and in those circumstances, as there was no
valid
full time worker for the part time worker's complaint, we find that too must be dismissed."
That was all that the Tribunal said about the matter.
"(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is not identifiable as a full-time worker.
(3) For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract -
(a) employees employed under a contract that is not a contract of apprenticeship;
(b) employees employed under a contract of apprenticeship;
(c) workers who are not employees;
(d) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that the workers of that description have a different type of contract."
"(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place -
(a) both workers are -
(i) employed by the same employer under the same type of contract, …"
The Regulation goes on to deal with the same or broadly similar work issue and the establishment point mentioned above.
"For the purpose of this agreement:
1. The term 'part-time worker' refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.
2. The term 'comparable full-time worker' means a full-time worker in the same establishment having the same type of employment contract or relationship, …"
- Regulation 2(3) provides a comprehensive list of categories of different types of contract for the purposes of paragraphs 2(1), (2) and (4);
- The categories in Regulation 2(3) are broadly defined and, since the purpose of the Regulation is to provide a threshold to require a comparison of full and part-time workers to take place, the threshold is deliberately set not too high;
- A contract cannot be treated as being of a different type from another just because the terms and conditions that it lays down are different, nor because an employer chooses to treat workers of a particular type differently;
- Where a worker and his or her comparator are both employed under contracts that answer to the same description given in the same paragraph in Regulation 2(3), they are both to be regarded as employed under the same type of contract for the purposes of Regulation 2(4).
- In order to satisfy the requirements of Regulation 2(4)(a)(i), it is not necessary to go further than to find that both workers are employed under contracts that fit into one or other of the listed categories;
- The categories are designed to be mutually exclusive;
- The category in Regulation 2(3)(d)[3] is a residual category. It refers to a description of worker who is different from those mentioned in categories (a) to (c) and does not apply to a worker who falls into one of those categories;
- An example of a description of worker who would fall within category (d) has yet to be identified. A zero-hours contract is not, of itself, a type of contract.
"37. … Nor am I unduly troubled by the decision of the European Court of Justice in [Wippel]. The claim in that case, to be paid on the basis of the maximum number of hours the worker could have been asked to work, when she was under no obligation to do any work at all, was clearly outrageous. It is not surprising that the court found that her "work when asked and if you please" arrangement was not the same type of relationship as those with whom she wished to be compared. Furthermore, the court was concerned with an "employment relationship" under clause 3(2) of the framework agreement, whereas we are concerned with the express words of the 2000 Regulations. The Regulations should be read as going at least as far as the framework agreement goes. But it is open to them to go further, as is clear from the broader regulation-making power contained in section 19 of the 1999 Act."
Note 1 Matthews v
Kent & Medway Towns Fire Authority [2006] ICR 365 HL, Wippel
v
Peek & Cloppenburg GmbH & Co KG [2005] IRLR 211 ECJ; O’Brien
v Ministry of Justice [2017] UKSC 46. [Back]