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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Carl v. The University of Sheffield [2009] UKEAT 0261_08_1505 (15 May 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0261_08_1505.html Cite as: [2009] IRLR 616, [2009] UKEAT 261_8_1505, [2009] 3 CMLR 21, [2009] UKEAT 0261_08_1505, [2009] ICR 1286 |
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At the Tribunal | |
On 27 February 2009 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR B BEYNON
MR T HAYWOOD
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR MARCUS PILGERSTORFER (of Counsel) Instructed by: University & College Union Solicitors 27 Britannia Street London WC1X 9JP |
For the Respondent | MS DAPHNE ROMNEY (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 7 Park Square East Leeds LS1 2LW |
SUMMARY
PART TIME WORKERS
Whether the Claimant may rely on a hypothetical comparator in a PTWR claim. Held. No.
Whether part-time worker status must be the sole reason for less favourable treatment. Answer No. Sharma preferred to Gibson and McMenemy.
The Employment Tribunal was entitled to conclude that the actual comparator relied on by the Claimant was not a true comparator. Therefore claim under PTWR was correctly dismissed by the Employment Tribunal.
HIS HONOUR JUDGE PETER CLARK
Background
PTWR
(1) is the Claimant permitted to rely on a hypothetical comparator in order to show unlawful less favourable treatment?
The Respondent submits not.
(2) must the Claimant show that the treatment was solely on the ground of her part-time status?
Here the Claimant challenges the Employment Tribunal's self-direction based on Gibson.
Hypothetical comparator
"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, and
(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and
(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements."
"men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer in the same establishment or at establishments in Great Britain…"
"Notwithstanding reg. 2(4), reg. 5 [right not to be less favourably treated] shall apply to a worker to whom this reg. applies as if he were a part-time worker and as if there were a comparable full-time worker employed under the terms that applied to him immediately before the variation or termination."
"The term' comparable full-time worker' means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.
Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice."
Causation
"The basic question is: what, out of the whole complex of facts before the tribunal, is the 'effective and predominant cause' or the 'real or efficient cause' of the act complained of?"
and later (43G) he added:
"The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. 'It is enough if it is an effective cause:' Banque Bruxelles Lambert SA v Eagle Star [1995] QB 375, 406 E-F (CA)."
"(a) the treatment is on the ground that the worker is a part-time worker …"
"The Tribunal then had to consider the Reg 5(2)(c) [sic. 5(2)(a)] test – "on the grounds of" [sic. 'on the ground that'] – reflecting the use of the word in the Framework Agreement 'solely'. The Tribunal is bound by the decision in Gibson v Scottish Ambulance Service – an unreported decision in 2004 in which the Court of Session [sic. EAT. Lord Johnston] held that "on the ground" was not the 'but for' test. A Tribunal had to be satisfied that the reason in the mind of the employer for the difference of treatment between a part-timer and full-time worker was that the part-timer was a part-time worker. The question simply was why did the Respondents treat the Claimant in the way they had. If there was a discriminatory reason then the treatment was unlawful."
"In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time …"
Reference is then made to Wippel and in particular paragraph 54 of the ECJ Judgment where it is said:
"Clause 4 … precludes part time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part time …"
"It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers or were intended to do more than to bring United Kingdom law into line with Community law."
Gibson was cited to the Court (Mr Napier again appeared for the employer on this occasion) and approved.
The Appeals
Disposal