Partly unfavourable

Sharma and ors v Manchester City Council

The law says that employers cannot treat part timers less favourably than full timers. In Sharma and ors v Manchester City Council, the Employment Appeal Tribunal (EAT) said that being part time does not, however, have to be the sole reason for the unfavourable treatment.

Basic facts

Ms Sharma and a number of colleagues worked as part time lecturers for Manchester City Council on what was known as “established” contracts. This meant their hours could be varied every year. According to Appendix 10 of a collective agreement, however, they were entitled to a guaranteed minimum of one third of the hours they had worked the previous year.

Because of significant funding difficulties in 2006, the council needed to make a number of cuts. As a result, it started giving priority to teaching staff (mainly full timers) who were currently working fewer hours than their contractual obligations. This resulted in cuts to the contractual hours of the “established” part timers.

Ms Sharma and her colleagues lodged a tribunal claim, saying that Appendix 10 was contrary to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, because it allowed for part time workers hours to be reduced. The council argued that it was not due to their part time status, but because there was a term in their contract which full timers did not have.

Relevant law

Regulation 5(1) of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that part timers are entitled not to be treated less favourably than comparable full timers “as regards the terms of their contracts”.

However, regulation 5(2) says this only applies if:

(a) the treatment is on the ground that the worker is a part-time worker, and
(b) the treatment is not justified on objective grounds.

Tribunal decision

The tribunal decided that the council’s approach was not contrary to the regulations. In reaching this conclusion, it relied on the EAT’s decision in Gibson v The Scottish Ambulance Service which held that being part time had to be the sole reason for the unfavourable treatment.

In this case the treatment was not just because of their part time status, but because this particular group had a term in their contracts which allowed the council to reduce their hours. In particular, there were other part timers employed on different contracts to whom Appendix 10 did not apply.

EAT decision

But the EAT overturned that decision. First of all, it said that Gibson was not authority for saying that being a part timer had to be the sole reason for the treatment. “In our judgment, once it is found that the part timer is treated less favourably than a comparator full timer and being part time is one of the reasons, that will suffice to trigger the Regulations.”

It also dismissed the council’s argument as “totally artificial” that the reason for the less favourable treatment was because the part timers had a term in their contracts which was not in the contracts of the full timers, as it was the council that had introduced it in the first place.

It concluded that “It would make a nonsense of the protection afforded to part timers” if the employer could rely on the very term in a part timer’s contract as a reason for differentiating between them and full timers as not amounting to less favourable treatment.

The EAT considered the example of an employer who did not give sick pay to part timers but did to comparable full timers. It decided that the employer should not be allowed to say that the basis of the distinction was the term of the contract, otherwise part time workers’ claims would always fail at the first hurdle without having to consider the issue of justification.