Sharma v Manchester City Council: UKEAT/561/07

EAT: Elias J (President), Dr B V Fitzgerald and Mr D Welch: 4 March 2008

The claimants were members of a group of part-time lecturers in the respondent council’s adult education service who were employed under contracts which could be varied from year to year, subject to a collective agreement under which they were guaranteed minimum hours of one third of the hours worked the previous year. When the claimants' hours were reduced following a reduction in funding for the adult education service, they claimed that, as part-time workers, they were treated less favourably than comparable full-time workers, contrary to regulation 5 of the Part-time Workers (Prevention of less Favourable Treatment) Regulations 2000, since their hours could be reduced in a way which did not apply to full-time employees. An employment tribunal dismissed the claims, holding that, interpreting the Regulations consistently with Council Directive 97/81/EC, as the collective agreement did not apply to all part-time workers, the reason for the less favourable treatment was not “solely” due to the claimants’ part-time status, so that regulation 5 did not apply; but the tribunal went on to find that, if it did apply, the treatment would not be justified for the purposes of regulation 5(2)(b).

The claimants appealed.

The Employment Appeal Tribunal held:
(1) A part-time worker could challenge the terms of his contract under regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 without waiting until the term was triggered to his detriment, and the only basis on which the term, whereby the claimants’ hours could be reduced by two-thirds, did not breach regulation 5 was if the part-time nature of a worker’s status had to be the sole reason for the discriminatory treatment. The reference to “solely” found in Directive 97/81 was intended to focus on the fact that the discrimination against a part-time worker had to be for the reason that he was a part-time worker and not for some other independent reason, so that, once it was found that the part-time worker was treated less favourably than a full-time comparator and that being part-time was one of the reasons, that was sufficient to trigger the protection. In any event, it was open to a member state to provide more favourable protection than afforded by the Directive, and, accordingly, there was no need to read any limitation in the Directive into the Regulations.
(2) Further, it was not open to the council to contend that the treatment of the claimants was not by reason of the fact that they were part-timers, for the purposes of regulation 5, when the reason for the differing treatment was the existence of the very term alleged to be the source of the less favourable treatment and that term was exclusive to the claimants’ group of part-timers. Accordingly, since there was no separate reason independent of the claimants’ part-time status and the differential treatment could not be objectively justified, the claimants’ claims succeeded.

The appeal was allowed.

Appearances: The claimants in person; Brian McCluggage (Solicitor, Manchester City Council) for the council.