In this eNewsletter: EMPU Contacts  Alan Masson Direct Dial: Email:   Andrew Brown Direct Dial: Email:
Where are we?1 Rutland Court,
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Part Time Workers – Minimum Hour Contracts Unlawful? In March the Employment Appeal Tribunal decided a case brought under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Two important points arose from this case:
This case may have an impact on any employer employing both part and full time workers but it is likely to have most significant impact in the education sector, where contracts providing for variations in hours from year to year, with a guaranteed minimum, are not unusual.
FactsThe case of P Sharma and Others v Manchester City Council [UKEAT/0561/07/RN] concerned lecturers employed by Manchester City Council. One particular group of part time lecturers were employed on contracts, which allowed for a variation in hours from year to year but a guaranteed minimum number of hours based on the previous year’s hours. Another group of part time workers did not have this variation in hours, or the guaranteed minimum, but were simply employed on contractual terms mirroring those of full time workers. Full time workers did not have this facility in their contracts to have their hours reduced to a guaranteed minimum. In an effort to save money, the Council reduced the hours of the first group of part time workers in accordance with their contract. The full time workers’ hours were not reduced nor were those of the part time workers employed under contracts which did not have this facility. The argumentsThe Council argued that the reason for the difference in treatment was the contractual terms of the claimants. The Council referred to the part time workers, employed under different contractual terms, whose hours were not reduced, to show that the reason for the difference was contractual as opposed to status. The decisionThe EAT noted that the Tribunal had considered itself bound by the test in Gibson v The Scottish Ambulance Service EATS/0052/04 in that the discrimination “had to be solely on the grounds of part-time status” (emphasis added). The EAT, departing from this test, said that “this is not a legitimate construction of the Regulations”. The EAT noted that only part time workers were employed under these terms. The claimants did not need to show that all part time workers were treated less favourably, or that being part time was the reason. Workers can take proceedings “if being part time is a reason for their adverse treatment” (emphasis added). In any event, the EAT decided that the reason for the treatment, in this case, was the part time status of the claimants as “it was only because the claimants were part time workers” that they had this term in their contract. The EAT also made it clear that “it is open to a part timer to challenge the terms of the contract whether or not they have had any immediate practical impact upon him or her” or, in other words, “A part time worker does not have to wait until that term is triggered to his detriment”.
CommentEmployers should be careful that, where they have contracts which allow for variation in hours from year to year but a guaranteed minimum, such contracts do not apply only to a particular group of employees. Being part time should not form any part at all of the reason for any less favourable treatment (unless it is able to be justified on objective grounds). Further, workers need not wait until the term is applied before raising proceedings. The same logic applies to less favourable treatment of workers on any unlawful ground. Employers should be able to say that that ground has nothing to do with the less favourable treatment. Further informationFor further information on the issues raised in this E-Zine, or any other discrimination or employment related business, please contact Alan Masson, Andrew Brown, or your usual contact in the Employment Team. |
