Part-time staff claiming the same rights as full-timers have received a major boost from a crucial decision by the House of Lords.
In Matthews and Others v Kent & Medway Towns and Fire Authority and others – a test case affecting about 16,500 retained firefighters – the House of Lords made it easier for part-timers to compare themselves with full-timers. The case also gives some clarity to employers on this issue.
The Matthews case
Mr Matthews and 11 other retained firefighters – part-time firefighters in less populated areas – brought test cases on behalf of retained fire crews across the UK.
Full-time firefighters (at the time of the case) worked a 42-hour week on a rotating shift pattern. In addition to answering emergency call-outs, they carried out certain fire prevention and fire safety work.
The claims were brought under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (PTWR). The key question, which could have repercussions for all employers of part-time workers, was whether retained firefighters could compare themselves with full-timers for the purposes of the PTWR. That split into two questions:
Were they employed on ‘different types of contract’?
Were they doing the ‘same or broadly similar work’ with regard to their skills, qualifications and experience?
The decision
On the first question, the House of Lords decided ‘different types of contract’ was to be given a restricted meaning. Different categories of contracts are specified under the PTWR and there is also a ‘sweeping up’ category. The House of Lords decided that if a part-time worker and their comparator both came within one of the specific categories, they were therefore employed on the same type of contract.
It also said that the sweeping up category was not a general one, allowing employers to say that part-timers could still be engaged on a different type of contract despite the fact that their full-time comparator was in the same category as the part-timer.
On the second question, the House of Lords said it was vital to give a broad interpretation to the ‘same or broadly similar’ test. It said the comparison is different from that under the Equal Pay Act, and that the work must be looked at as a whole.
However, the question is not whether it is different, but whether it is similar. The House of Lords said it would be almost inevitable that the work would differ to some extent. But the fact that full-timers do some extra tasks would not prevent their work from being the same or broadly similar to the retained firefighters.
The Matthews case will now go back to the employment tribunal to apply those tests to the facts of the case.
Implications
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In light of this decision, it is important for you to:
- review who you employ part-time and on what terms
- identify whether there are full-timers working alongside those part-timers who may be comparators on the above-mentioned tests
- establish whether those part-timers receive pro-rata benefits and entitlements to those of the full-timers. If not, is there an explanation unrelated to being a part-timer? If there is, there is no breach of the PTWR. If not, look at whether there is a clear objective justification for such difference. Otherwise, you may be running the risk of claims.
Part-time workers regulations: KEY POINTS
- Part-timers must be able to establish a comparable full-time worker to be able to claim under the PTWR.
- If the part-timer and their full-time comparator both come within one of the specific categories in the PTWR, they are employed on the same type of contract.
- In deciding whether part-timers and their full-time comparators do the same or broadly similar work, the work they do must be looked at as a whole, taking into account both similarities and differences. Particular weight should be given to the extent to which their work is, in fact, the same.
- Carry out audits to see whether you are at risk of claims from your part-time workers.
