PART TIME WORKERS
A worker employed under an associate lecturer’s contract of employment described by the Employment Tribunal as a zero-hours contract, was employed under the same type of contract as a lecturer on a full-time contract for the purposes of Regulation 2(2) and 2(4)(a)(i) Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The Employment Tribunal had erred in concluding that Wippel v Peek and Cloppenburg GmbH and Co KG [2005] IRLR 211 ECJ led to the conclusion that the Claimant and his full-time comparator were not employed on the same type of contract.
The case is remitted to the Tribunal to determine whether the part-time worker is engaged in the same, or broadly similar, work pursuant to Regulation 2(4)(a)(ii) and, if so, whether he has been subjected to unjustified less favourable treatment contrary to Regulation 5.
The following principles as to the proper approach to Regulation 2(3) for the purposes of Regulation 2(2) and 2(4) emerge from the case law[1]:
Regulation 2(3) provides a comprehensive list of categories of different types of contract for the purposes of paragraphs 2(1), (2) and (4);
The categories in Regulation 2(3) are broadly defined and, since the purpose of the Regulation is to provide a threshold to require a comparison of full and part-time workers to take place, the threshold is deliberately set not too high;
A contract cannot be treated as being of a different type from another just because the terms and conditions that it lays down are different, nor because an employer chooses to treat workers of a particular type differently;
Where a worker and his or her comparator are both employed under contracts that answer to the same description given in the same paragraph in Regulation 2(3), they are both to be regarded as employed under the same type of contract for the purposes of Regulation 2(4);
In order to satisfy the requirements of Regulation 2(4)(a)(i), it is not necessary to go further than to find that both workers are employed under contracts that fit into one or other of the listed categories;
The categories are designed to be mutually exclusive;
The category in Regulation 2(3)(d)[2] is a residual category. It refers to a description of worker who is different from those mentioned in categories (a) to (c) and does not apply to a worker who falls into one of those categories. An example of a description of worker who would fall within category (d) has yet to be identified. A zero-hours contract is not, of itself, a type of contract.
Citations:
[2018] UKEAT 0299 – 17 – 2603
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 April 2022; Ref: scu.616882
