Categories of comparison

The law states that a part-time worker cannot be treated less favourably than someone who works full time if they are employed under the “same type of contract”. In Roddis v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) held that contracts should be defined broadly so that a part-time worker on a zero hours contract can be compared to a full-time worker on a permanent contract.
Thompsons was instructed by UCU to act on behalf of their member in the EAT appeal.

Basic facts

Mr Roddis had been employed at Sheffield Hallam university as a part-time associate lecturer since January 2006. He claimed, among other things, that he had been subjected to less favourable treatment compared to a full-time lecturer, Mr Mark Leader, under regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In order to succeed in his claim, he had to show that he was employed under the “same type of contract” as Mr Leader under regulation 2(4).

Relevant law

Regulation 2(4) states that both the full time and the part time worker have to be employed by the same employer “under the same type of contract”.

Reg. 2(3) provides a list of four mutually exclusive types of contract which show that someone is employed under a different type of contract:

(a) employees employed under a contract that is not a contract of apprenticeship
(b) employees employed under a contract of apprenticeship
(c) workers who are not employees
(d) 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.

In order to determine whether Mr Roddis and Mr Leader were employed under the “same type of contract” for the purposes of the comparison under regulation 2(4) the essential question was whether the contracts fell within the same category under regulation 2(3).
Regulation 5 states that a part-time worker has the right not to be treated less favourably than a comparable full-time worker as regards the terms of their contract if the treatment is on the ground that they work part time and the employer cannot justify it.

Tribunal decision

The tribunal held that Mr Roddis was employed on a zero hours contract in that his hours of work were said to vary according to “the workload of the University's business” which could be as few as zero hours per week. It then found that Mr Leader had a permanent contract as an academic lecturer.

Relying on the decision of the Court of Justice of the European Union in Wippel v Peek & Cloppenburg GmbH, it held that Mr Leader was not an appropriate comparator as a full-time worker as the two were not employed under “the same type of contract” as required under regulation 2(4)(1). It therefore struck out his claim for unfavourable treatment.

EAT decision

Holding that the tribunal was wrong to have relied on Wippel (which was a claim for payment on the basis of the maximum number of hours the worker could have been asked to work), the EAT held that it should instead have relied on the decision of the Court of Appeal in Matthews v Kent & Medway Towns Fire Authority which emphasised the need to look at the comprehensive list of categories of different types of contract set out in regulation 2(3). These categories were broadly defined to ensure that the threshold for comparing contracts between full time and part time workers was not set too high. As such, one contract could not be different to another just because the terms and conditions were different.

The tribunal was therefore wrong not to have looked at the broad characteristics of both contracts and realised that they were both contracts of employment. Both were permanent in the sense that both employees had the protection of notice periods and had acquired statutory protection from unfair dismissal by virtue of their length of service. Any differences between them were not therefore relevant in terms of the categories set out in regulation 2(3).

As such, the EAT upheld the appeal and substituted a finding that Mr Roddis and Mr Leader were employed under the same type of contract for the purposes of the Part-Time Workers Regulations.