| EMPLOYMENT — Contract of employment — Part-time worker — Retained fire fighters claiming less favourable treatment than whole-time fire fighters — Whether same type of contract — Whether engaged in same or broadly similar work — Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), regs 2(3)(4), 5
Matthews v Kent and Medway Towns Fire Authority and others [2006] UKHL 8
HL(E): Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Mance: 1 March 2006
Retained and whole-time fire fighters employed by the respondent fire authorities were employed under the same type of contract within reg 2(4)(a)(i) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 notwithstanding differences in their work activities. In assessing under reg 2(4)(a)(ii) whether their work was “broadly similar” the extent to which it was exactly the same was of great importance.
The House of Lords so held in allowing (Lord Carswell and Lord Mance dissenting) an appeal by the applicant retained fire fighters, Bruce Robert Matthews and 12 others, from the decision of the Court of Appeal (Jonathan Parker, Longmore and Maurice Kay LJJ) [2005] ICR 84 dismissing their appeal from the Employment Appeal Tribunal [2004] ICR 257, which had dismissed their appeal from an employment tribunal at London (South).
LORD NICHOLLS OF BIRKENHEAD agreed with Lord Hope of Craighead and Baroness Hale of Richmond.
LORD HOPE OF CRAIGHEAD said that the applicants were retained (part-time) fire fighters. They claimed that they had been unlawfully discriminated against as to their terms of employment as compared with those of whole-time fire fighters. The question was accordingly whether the whole-time fire fighters were comparable full-time workers within reg 2(4) of the 2000 Regulations. Both were employed under a contract that was neither for a fixed term nor of apprenticeship (reg 2(3)(a)). The question was whether the Court of Appeal had been right to hold that retained fire fighters were employees within para (a) rather than para (f) (“any other description of worker that it is reasonable for the employer to treat differently …”). The question whether a full-time worker was employed under the same type of contract was to be approached broadly. A contract was not to be treated as of a different type just because the terms and conditions were different or the employer chose to treat workers of a particular type differently. It was sufficient, to give para (f) some meaning, to say that it was there to fill any gaps that might have been left. The Court of Appeal had been right. As to “the same or broadly similar work”, the employment tribunal had held that the whole-time fire fighters carried out measurable additional job functions and that there were material differences between the two groups in the level of qualification and skills. They had, however, treated the differences as an additional factor leading to the conclusion that comparability could not be established without assessing the extent to which the differences affected the work that the two groups were actually engaged in. Nor had they given sufficient weight to the extent to which the work on which both groups were engaged was “the same” work. They had concentrated on the differences rather than the similarities. Their decision was defective and must be set aside.
BARONESS HALE OF RICHMOND delivered an opinion concurring in allowing the appeal.
LORD CARSWELL said that he agreed with Lord Hope that the fire fighters were employed under the same contract. On the second issue, however, the tribunal had examined the facts fully and conscientiously and had had material on which they had been entitled to conclude that the retained and whole-time fire fighters were not engaged on the same or broadly similar work. They had been right to look in detail at similarities and differences so long as they maintained a proper balance and breadth of vision.
LORD MANCE said that it seemed likely that para (f) of reg 2(3) of the 2000 Regulations had been conceived to introduce a greater element of flexibility than the rigid classification of classes (a) to (e) could allow. No basis had been shown for disagreeing with the tribunal’s assessment of the facts regarding the differences in the types of contract.
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