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Thomas H. John, MRPharmS, Barrister-at-law, was
called to the Bar in 1997 and now has a full-time common law practice
from Chambers in Milton Keynes.
Correspondence can be forwarded to Mr John via Andrew Hutchins
(chief clerk) or Neil Goodman-Smith (practice manager) at Barristerweb,
Midsummer Court, 314 Midsummer Boulevard, Milton Keynes MK9 2UB
(tel 0845 123 1234). |
How to read this article
To obtain optimum benefit it is suggested
that practitioners read the question or questions posed at the
outset of the digest,
then read the facts and the issues arising, then the decision of
the
court together with the reasoning behind the decision. The question
or series of questions should then be reread and consideration
given as to whether any lessons can be learnt in terms of practitioners’ practices. |
The question
To what extent have employment rights of part-time workers been clarified
following the coming into force on 1 July 2000 of the Part-Time Workers
(Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations)?
The law
As discussed in the first part of this article, the PTW Regulations
and the Full-Time Employees (Prevention of Less Favourable Treatment)
Regulations
2002 were brought into force in England and Wales as a result of
EC Directive 99/70. They are viewed by legal practitioners and academics
as part of a series of anti-discrimination legislation to cement
and
extend the two major anti-discrimination Acts passed during the 1970s,
namely, the Sex Discrimination Act 1975 and the Race Relations Act
1976. By their nature as laws prohibiting discriminatory practices
on the part of employers, they have their widest application in the
field of employment law and industrial relations generally.
Almost paradoxically there is an in-built potential for the legislation
to exert a perverse effect since all employers will wish to exercise
discrimination in some shape or form within their selection procedures
in striving to employ the most suitable people for their businesses.
How, then, does the law address this balance in ensuring that fair
and equitable treatment is afforded to all employees and applicants
for employment
on the one hand against the policies of employers on the other?  The
case
Matthews and others v Kent and Medway Towns Fire Authority and others.
Employment Appeal Tribunal (Judge Birtles, Mrs C. Baelz and Ms B.
Switzer). Judgment given 7 August 2003.
Bruce Matthews and 11 other part-time fire-fighters brought claims
shortly after the coming into force of the PTW Regulations, alleging
they had
been discriminated against in comparison with their full-time, employed
colleagues in that:
· They were excluded from the fire service pension scheme
· They were subject to lower additional duties payments
· They were subject to less favourable sick pay arrangements
For them to succeed in their claims, the law stated that Mr Matthews
and his part-time colleagues would have to satisfy the employment tribunal
to the civil standard, that is, on a balance of probability, that:
· They were employed under the same type of contract as their full-time
counterparts (Regulation 2[3]) or
· They had been doing work of the same or similar nature to the full-timers
(Regulation 2[4]) and
· It would have been unreasonable for the employer to have treated them
differently from their full-time counterparts (Regulation 5)
The employment tribunal, having heard the full facts, dismissed each
of the part-time fire-fighters’ claims.
Mr Matthews and his colleagues appealed to the Employment Appeal Tribunal
(EAT), the appellate body for employment tribunals throughout England
and Wales. The EAT deals only with appeals on points of law, every tribunal
being entrusted to decide any issues of fact arising from claims brought
before them.
Since such important issues were at stake in this case, the fire authorities
cross-appealed. They maintained that the employment tribunal had erred
in law in finding that, if the part-timers had been successful in the
first part of their claims, the fire authorities’ practices would
indeed have been discriminatory. The Secretary of State also joined in
the appeal, maintaining that the tribunal had used the wrong legal test
in finding that the part-timers were not employed on the same type of
contract as the full-timers. The Secretary of State maintained that the
correct approach should have been for the employment tribunal to analyse
both full-time and part-time contracts on a term-for-term basis rather
than simply looking at the overall favourableness of the respective packages.
The decision and reasoning The EAT agreed with the employment tribunal
on all the points of law appealed.
Judge Birtles said that the tribunal had correctly assessed that, in
this case, although there were many similarities between the part-time
and full-time contracts, there were also a number of important differences,
the most important of which related to tenure and duration of employment.
Therefore it could not be said that the two contracts were of the same
type within the meaning of Regulation 2(3).
As to the next ground, whether the part-timers and full-timers were doing
the same or broadly similar work, the EAT found that the tribunal had
correctly assessed the position in that the two groups had differing
patterns of work activities. For example although both groups’ activities
included putting out fires and both had to maintain the same level of
physical fitness, the vital differences were that the proportion of time
actually spent tackling fires, the variability of work patterns, fire
safety work and ongoing training were such that the two groups could
not be said to be doing work of the same or a broadly similar nature.
The EAT also agreed with the tribunal that had there been no such differences
between the contracts of the two groups there was no reason for the different
treatment in terms of pension rights, additional duty and sick pay other
than that the part-timers were simply that, ie, part-timers. Consequently
there was no objective justification for why those differences existed
and the differences were, therefore, discriminatory. The EAT emphasised
that the correct approach was indeed to assess the overall favourableness
of the two packages to the workers involved and not to consider the contracts
on a term-by-term or piece-by-piece basis.
Discussion
A number of important principles emerge from the case. · First, it is clear that for any claim to succeed before a tribunal
each and every legal element must be proven by the person bringing the
claim at least on a balance of probabilities. What this means in practice
is that claimants must show it is more likely than not that what is being
alleged by them is the true position at their workplaces.
· Secondly, it is submitted that tribunals are taking a restrictive approach
to claims of discrimination brought before them. They are examining those
claims closely and refusing to afford a liberal interpretation to the
regulations. This has the effect of ensuring that spurious or speculative
claims brought by disgruntled employees are unlikely to succeed. Any
employee thinking of bringing a claim against his or her employer is
strongly advised to obtain specialist legal advice at an early stage
before embarking on any such claim.
· Finally, bearing in mind that claims must be brought before the tribunal
within strict time limits of three months from when the alleged discrimination
occurred, early specialist legal advice is vital. There is plenty of
scope for obtaining such advice. Although no legal aid is available for
employment claims, most firms of solicitors will grant an initial interview
free of charge. Some barristers are also able to advise potential clients
in employment matters without the need for initial consultation with
a solicitor. Further details on the bar’s Direct Public Access
scheme can be found on the Bar Council’s website. A number of Citizen’s
Advice Bureaux and local Law Centres can also give advice on employment
issues.
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The
Pharmaceutical Journal