PTD191

The Adjudication Officer found that the Complainant had not identified a comparable full-time employee and therefore his complaint of less favourable treatment cannot succeed.

Background

The Complainant commenced employment with the Respondent in November 2011. The Complainant’s contract describes him as ‘part-time on a casual basis’ however it was accepted at the commencement of the Labour Court hearing that the Complainant was a part-time worker in accordance with the definitions set out in the Act. The Complainant is employed as a stage hand and it is his contention that his hourly rate of pay is less than his fulltime comparator. It was not disputed by the Respondent that the Complainant and his named comparator are paid different rates of pay or that they carry out broadly similar work. The Respondent’s position is that the Comparator (Mr X) chosen by the complainant is not a valid comparator as he has different contractual obligations.

Complainant’s case

It is the Complainant’s case that the work he does is indistinguishable from the work of his comparator and that he is paid a lesser rate than his comparator. The Respondent has accepted that the work is broadly similar. The Respondent is relying on what it states are differentials in the contractual obligations of the Complainant and his comparator which they state mean the named comparator cannot be an appropriate comparator.

In particular, the Respondents are stating that a condition of the Complainant’s contract is that he does not have to make himself available for work whereas a fulltime employee does. This is disputed by the Complainant. There is no reference in the Complainant’s written contract to such a clause and in practise the Complainant was rostered in the same manner as fulltime staff. The rosters are drawn up by the Complainant’s manager and issued a week in advance. This was accepted by the Respondent. The Complainant has the same flexibility as a fulltime employee in terms of indicating time and or dates that might not suit. The Complainant has never failed to attend for shifts he was rostered for. The Respondent in support of their contention that Mr X is not a valid comparator rely on the case ofWippel v Peek & Cloppenburg GmbH & Co.KG ECJ [2005] IRLR 211. It is the Complainant’s contention thatWippelon the facts of this case, does not support a finding that the Complainant had not identified a comparator. It is the Complainant’s contention that he fully meets the criteria for a comparator set down in s7 (3) of the Act. In support of this contention the Complainant relies onMatthews v Kent & Medway Towns Fire Authority[2006] 2 ALL E.R. 271 in particular the approach taken by Longmore L.J. in the Court of Appeal where he stated at paragraph 28 that:

• “If an employer can ‘reasonably’ treat part-time workers differently from full-time workers and say that the ground on which he is so doing is that part-time workers have a different type of contract from full-time workers, there will be little or no scope for an employment tribunal to assess for itself, as it is obliged to do.. whether the employer is treating the part-time worker less favourably than a comparable full-time worker as regards ‘the terms of his contract’. All the more will this be the case if it is ‘the terms of his contract’ on which the employer is entitled to rely for the purpose of asserting that it is reasonable to treat his part-time workers differently.”

Respondent’s case

It is the Respondent’s position that the Complainant is a part-time casual worker with no obligation to accept work offered. At the start of the hearing the Respondent accepted that the Complainant was a part-time worker in accordance with the Act.

It is the Respondent’s position relying on the decision inWippelthat no fulltime comparator exists within the Respondent’s business. In support of this contention the Respondent submitted to the Court that as a part-time worker the Complainant had flexibility to work the hours he chose and to refuse hours. It is the Respondents’ contention that a fulltime worker does not have the same flexibility.

In response to a question from the Court the representative for the Respondent accepted that paragraph 4 of the Complainant’s contract set out the hours within which the Complainant’s normal working hours would occur and that the Company reserved the right to alter these working hours from time to time. The Respondent did not dispute that the contract stated “that he may be required to work other specified times…… at the discretion of management”. The Respondent could not explain how those contractual requirements could be classified as the Complainant being free to turn down work as he saw fit.

In support of their contention that the Complainant could turn down work the Respondent drew the Court’s attention to a number of texts where the Complainant had been offered work at short notice, in some cases only a matter of hours before the shift began, and he had declined same. The Respondent later accepted that these texts referred to additional hours over and above his contractual hours and were not part of his rostered work for that particular week.

It is the Respondent’s submission that theWippelcase supports the contention that full-time workers cannot be comparators for part-time workers where the contracts differ. The Respondent drew the court’s attention to a number of paragraphs within the Wippel decision. Relying on these paragraphs and the general trust ofWippelit is their contention that the Complainant does not have a valid comparator within the Respondent’s employment and therefore his case must fail.

The law

Section 9(1) of the Act provides the general right of part-time employees to equal treatment with comparable full-time employees in respect to conditions of employment. In order to make out a claim under the Act a claimant must first identify a comparable full-time employee against whom the claim is grounded. Section 7(2) of the Act defines “a comparable full-time employee” as follows:-

• • (2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—
    • 
      (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

      (b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

      (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

  and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

• (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

  (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

  (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

• With regard to the Wippel case, suffice it to say that this was also relied upon inMatthews v Kent & Midway Town Fire Authoritywhere its relevance was dismissed by the Law Lords. Baroness Hale pointed out, at par 37 of the report, that the proposition contended for in Wippel was so outrageous that it was unsurprising that the Court of Justice ruled as it did. It will be recalled that in Wippel the plaintiff was employed as a sales assistant on what was described as "an as required and if you please" contracts. She could work if and when she pleased and she had no obligation to accept work if and when it was offered. She nonetheless claimed an entitlement to be paid, in all circumstances, the amounts which she would have received had she worked the maximum number of hours provided for under her contracts even though she had no obligation to do any work at all. Given the extraordinary facts of this case it is difficult to conceive of any other set of facts to which the decision might be apposite. The Claimant in this case cannot decide for himself whether to work or not. Also, he is employed on the same contractual basis as the comparator except that he is engaged part-time and the comparators are engaged full time. For these reasons alone, this case can be distinguished from Wippel.
  Furthermore, the reference in the Directive to the “same type of contract or employment relationship” cannot be interpreted as meaning that a contract of employment for part-time work is of a different type to a similar contract for full-timework. If the Framework Agreement were to be so construed it would defeat the very purpose of the legislation which is to allow for a comparison between those on full-time contracts and those on part-time contracts. Nor can it be interpreted as meaning that full-time and part-time workers are engaged in a different type of employment relationship because the employer chooses to treat them differently. Rather, the reference in the Framework Agreement must relate to the difference between, for example, a contract of service and a contract for services, or a contract of apprenticeship (on this subject see the speech of Lord Hope of Craighead, inMatthews v Kent & Midway Town Fire Authority, at pars7,8 and 9)

• It is for the Claimant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the Claimant and the comparator are engaged in like work. The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the Claimant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. Hence the determinative considerations are the nature of the work being performed by the two and that one is in a protected category and the other is not.

• I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State laboratory, who was engaged in like work with the defendant was a “comparable permanent employee” for the purposes of s.6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s.5 for a comparable permanent employee vis-�-vis the defendant as a fixed-term employee. The Act expressly provides that the term “employee” includes an established civil servant.