Employment Law Speed Read – 04/06/18

Roddis v Sheffield Hallam University (2018)

In Roddis v Sheffield Hallam University (2018) the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) had erred in deciding that the claimant on a zero-hours contract, could not use an employee on a full-time contact as his comparator for the purposes of the Part Time Workers (Prevention of less Favourable Treatment) claim.

Background 

The Part-Time Worker (PTW) Regulations prevent employers from treating part-time workers less favourably on the grounds of their part-time status unless this treatment can be objectively justified.

In order for a claimant to demonstrate less favourable treatment under the regulations they must identify an actual full–time worker as their comparator.

The full-time comparator must:

• be employed by the same employer;
• have the same contract type;
• be engaged in the same or broadly similar work; and
• be based at the same establishment.

Regulation 2(3) sets out the following four categories of workers that can be regarded as being employed under the same type of contract:

• employees employed under a contract of employment that is not a contract of apprenticeship;
• employees employed under a contract of apprenticeship;
• workers who are not employees; and
• 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.

Only those workers falling within the same categories will be seen as having the same contract type.

Facts

The Claimant was employed by Sheffield Hallam University (the University) as an associate lecturer on a zero-hours contract.

The Claimant brought claims against the University for unfair dismissal, age discrimination and less favourable treatment under the PTW Regulations.

Employment Tribunal

At a preliminary hearing, the ET found that for the purposes of his PTW claim, the Claimant did not have a comparator.

This was because they found that the Claimant’s proposed comparator, Mr Leader, was on a contract which provided him with permanent employment as an academic lecturer. This was in contrast to the Claimant’s associate lecturer contract which was a zero-hours contract. The ET concluded that Mr Leader did not have the same contract type as the Claimant, and therefore he did not have a comparator for the purposes of the PTW Regulations. Consequently the ET struck out his PTW claim.

Employment Appeal Tribunal

The EAT overturned the ET’s decision, and held that the Claimant and Mr Leader were employed under the same type of contract.

In coming to their decision, the EAT applied the guidance set out by the House of Lords in Matthews v Kent & Medway Towns Fire Authority [2006]. The EAT noted that the case established that the categories in Regulation 2(3) were “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.”

Further, the EAT reiterated that “a contract cannot be treated as being 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”.

The EAT concluded that if they decided that the difference between the hours in the Claimant’s and Mr Leader’s contracts meant that they were not the same “type of contract”, the purpose of the PTW Regulations would be defunct and self-defeating.

Therefore, the EAT held that the Claimant was employed under the same type of contract and remitted the case back to the ET.

Comment 

Employers will be aware that this case comes at a time when zero-hours contracts are under a high level of scrutiny from the press, parliament and the courts.

This case highlights the fact that just because a worker is on a zero-hours contract, does not mean that they cannot compare themselves to a full-time employee for the purposes of bringing a Part Time Worker claim under the Regulations.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.