Mr A Tidd v Devon and Somerset Fire and Rescue Service: 1404298/2023
EMPLOYMENT TRIBUNALS
Case No 1404298/2023
Between
Mr A TiddClaimantDevon and Somerset Fire and Rescue ServiceRespondent
Before
Employment Judge CuthbertMr Cheetham KC (instructed by counsel) for respondentDate 14 March 2025
JUDGMENT
[1]the claimant’s complaints of less favourable treatment on the ground of being a part-time worker fail and are dismissed; and[2]the claimant’s complaints of less favourable treatment on the ground of being a fixed-term employee fail and are dismissed.
REASONS
[1]The case was listed for a public, four-day, full hearing, liability-only, to determine the claimant’s complaints of less favourable treatment on the grounds of part-time and fixed-term status. We explained to the parties at the outset that we would only be able to sit for the first three of the listed days. In the event, the case was able to be completed within that reduced listing, albeit that we were not in a position to give an oral decision by the end the third day, hence this reserved judgment and reasons.[2]The claimant was represented at the hearing by a trade union representative and the respondent was represented by leading counsel.[3]Following initial discussions with the parties at the start of the hearing, the issues were clarified and agreed as set out below from para 7.[4]We were provided with three bundles of documents, which were referred to during the hearing as volumes 1 (221 pages), 2 (99 pages) and 3 (50 pages) respectively and a bundle of witness statements. We also received an opening note and chronology on behalf of the respondent, a timeline of roles held by the claimant (which we requested and the claimant prepared), screenshots of HR records of roles held by the named comparators and a glossary.[5]References below in these reasons in square brackets are to the relevant bundle (“V”) and to pages within it (e.g. [V1:24-25]). We explained to the parties that we would read documents which we were asked to read in advance and which were referred to during evidence (i.e. by way of page references in witness statements and during cross examination). Mr Ashby identified one document and Mr Cheetham provided a number of document references, by way of advance reading.[6]Following our reading-in, the evidence and submissions proceeded and concluded at the end of day two and day three was taken up with our deliberations. We had explained to the parties that judgment would be reserved. Issues[7]The issues to be determined (liability-only) were updated and agreed at the start of the hearing as listed below from para 10. That list followed on broadly (in terms of the four particular allegations of less favourable treatment) from an earlier agreed version of the issues, attached to a Case Summary from a previous hearing on 4 November 2024.[8]There had been three hearings in this claim prior to the present hearing in these specific proceedings, at which the claimant had represented himself on each occasion. At one of the hearings, on 9 August 2024, it was determined that the claimant’s claims had been presented out of time, but that it was just and equitable to extend time [V3:15].[9]The comparators named below were identified by the claimant at the start of the present hearing, during the discussions about the list of issues.[10]“Allegation 1” – fitness test issue, September 2021 (this was said to be less favourable treatment because of the claimant’s part-time and fixed-term status): 10.1. The respondent accepts that the claimant was a part-time worker and a fixed-term employee at the relevant times. 10.2. The claimant relies upon Adrian Atkinson as the actual full-time and permanent comparator. 10.3. Did the respondent treat the claimant less favourably than Adrian Atkinson in September 2021, by requiring the claimant to take an additional fitness test when applying for a Wholetime Firefighter role? 10.4. If so, was that treatment on the ground of the claimant’s part-time and/or fixed term status? 10.5. If so, can the respondent show that the less favourable treatment was objectively justified? (The respondent indicated at the start of the hearing that justification did not arise in light of disputes in respect of issues 10.2 to 10.4 but during closing submissions the respondent did put forwards justification arguments in respect of fitness testing– see para 92.2.6 below).[11]“Allegation 2” – Wholetime Watch Manager closed email recruitment issue, December 2021 (this was said to be less favourable treatment because of the claimant’s part-time and fixed-term status): 11.1. The respondent accepts that the claimant was a part-time worker and a fixed-term employee at the relevant times. 11.2. The claimant relies upon Ed Durante as the actual full-time and permanent comparator. 11.3. Did the respondent treat the claimant less favourably than Ed Durante in December 2021, by preventing the claimant from applying for the role of Watch Manager (R&D Officer or Policy and/or Procedure and Guidance Officer) by only making that role available to Wholetime and/or permanent staff, or staff having gone through the Watch Manager cohort? 11.4. If so, was that treatment on the ground of the claimant’s part-time and/or fixed term status? 11.5. If so, can the respondent show that the less favourable treatment was objectively justified. the respondent says its legitimate aim is to require those seeking promotion above a certain level to attend an assessment centre.[12]“Allegation 3” – Crownhill Wholetime Watch Manager recruitment issue, August 2022 (said to be less favourable treatment because of the claimant’s fixed term status only) 12.1. The respondent accepts that the claimant was a fixed-term employee at the relevant times. 12.2. The claimant relies upon Adrian Atkinson as the actual permanent 12.3. Did the respondent treat the claimant less favourably than Adrian Atkinson in August 2022 by not allowing the claimant to apply for the permanent Wholetime Watch Manager role at Crownhill? 12.4. If so, was that treatment on the ground of the claimant’s fixed-term status? 12.5. If so, can the respondent show that the less favourable treatment was objectively justified. The respondent says as follows: 12.5.1. Legitimate aim: Need for better use and management of resources and by financial constraints. The Respondent was seeking to increase the number of suitably qualified Watch Managers carrying out operational roles without incurring additional recruitment and training costs. That was a legitimate aim, as a public service is required to try and run that service efficiently and cost-effectively. 12.5.2. Proportionality: 12.5.2.1. Filling the role of Watch Manager by internal lateral transfer was a proportionate means of achieving that aim, drawing first from that pool of employees with the requisite experience. 12.5.2.2. Recruiting from outside the existing pool of substantive Wholetime Watch Managers would have increased the headcount, whereas the Respondent was seeking to utilise the existing pool, as well as to make financial savings. 12.5.2.3. If the role could not be filled by lateral transfer, then there would have to be a recruitment and promotions process, because any external applicant (including fixed-term Wholetime staff) would need to be interviewed, assessed and promoted to fill that role. That further recruitment and promotions process, if avoided, was a costs-saving for the Service. 12.5.2.4. The further recruitment and promotions process was open to any eligible employee (regardless of whether they were temporary or full-time, fixed-term or permanent).[13]“Allegation 4” – alleged demotion issue from On-Call Watch Manager role, September 2022 (said to be less favourable treatment because of the claimant’s part-time status only): 13.1. The respondent accepts that the claimant was a part-time worker at the relevant times. 13.2. The claimant relies upon Pete Watts as the actual full-time 13.3. Did the respondent treat the claimant less favourably than Pete Watts in September 2022 by facilitating the demotion of the claimant in order to accommodate permanent, Wholetime staff wanting to enhance their on-call pensions by taking up a secondary contract? 13.4. If so, was that treatment on the ground of the claimant’s part-time status? 13.5. If so, can the respondent show that the less favourable treatment was objectively justified. the respondent says no justification argument arises because there is no less favourable treatment and that the claimant’s complaint is merely of treatment alleged to be unfair.
Findings of fact
[14]We have made findings of fact on matters which were relevant to Allegations 1 – 4 above. We have not made findings on matters which were not relevant to those allegations.[15]We read witness statements from and heard oral evidence from: 15.1. The claimant (the following on behalf of the respondent) 15.2. Roslyn Clarke, Group Manager, Head of People Development Team 15.3. Tamsin Inglis, HR Reward and Benefits Manager 15.4. Mareena Anderson-Thorne, Culture & Service Transformation Manager 15.5. Michael Porter, Area Manager[16]We also read witness statements on behalf of the claimant from James Leslie (a brief statement about a grievance meeting) and from Mark Palmer. Mr Leslie did not attend the hearing and the respondent did not seek to cross examine him; Mr Palmer did attend but the respondent did not seek to cross examine him and we had no questions about his evidence.[17]We refer to the witnesses’ evidence, if and where relevant, below.[18]We also record here our recognition that the claimant and all of the witnesses for each side are clearly deeply committed and dedicated to the vital fire and rescue service which the respondent provides to the public, in self-evidently challenging situations. General matters[19]A number of expressions and terms specific to the fire and rescue service were used during the hearing and appear in these reasons: 19.1. “Wholetime” role – this meant full-time (and usually primary) employment 19.2. “On-Call” (aka “Retained”) role – this meant part-time (and usually secondary employment) 19.3. “Grey Book” - this referred to uniformed roles (normally operational) 19.4. “Green Book” - this referred to non-uniformed roles (normally nonoperational) 19.5. “Crew Manager”, “Watch Manager” – these were management/ leadership roles with the fire and rescue service, within the same National Fire Chiefs Council (“NFCC”) leadership banding[20]The respondent fire and rescue service is structured as follows: it has two stations staffed by Wholetime firefighters, it has 10 stations staffed by a combination of Wholetime and On-Call firefighters and 69 stations staffed by On-Call firefighters only.[21]Firefighters working in On-Call roles must be able to fulfil a requirement of being able to attend their assigned station within five minutes of being called. This means that they need to live or work close to their assigned station.[22]Ms Clarke was taken during her evidence to “Role Maps”, documents which set out essential elements of the roles of Firefighter [V2:85], Crew Manager [V2:86] and Watch Manager [V2:87]. She readily accepted that the elements set out in those documents were the same, whether roles were being performed by Wholetime or On-Call staff. The claimant’s employment history[23]The claimant’s own employment history was a relatively complex picture with concurrent employments - some part-time, some Wholetime; some fixedterm and some permanent: 23.1. 29 October 2013 until 7 April 2017 – On-Call Firefighter (a part-time, permanent role) 23.2. 7 April 2017 until 19 July 2019 – On-Call Crew Manager (a part-time, permanent role) 23.3. 19 July 2019 until 26 September 2022 – On-Call Watch Manager (see Allegation 4) (a part-time, permanent role) 23.4. 27 September 2022 onwards – On-Call Crew Manager (a part-time, permanent role) 23.5. 17 November 2019 until 20 June 2021 – fixed-term, Wholetime Firefighter (held concurrently with the On-Call role at para 23.3 above) (a full-time, fixed-term role) 23.6. 1 July 2021 until 30 October 2021 – fixed-term, Wholetime Watch Manager – “Policy, Procedure and Guidance” role (held concurrently with the On-Call role at para 23.3 above) (a full-time, fixed-term role) 23.7. 25 April 2022 until 31 December 2022 – fixed-term, Wholetime Watch Manager – “R&D Team” role (held concurrently with the On-Call roles at paras 23.3 and 23.4 above) (a full-time, fixed-term role) Promotions/transfers generally within the respondent, including from On-Call to Wholetime roles[24]Repeated references were made during the witness evidence to a set of principles drawn up by a working group within the respondent – the principles were known as “Right To Apply” (RTA). These principles appeared in a document at [V1:77 – 81], an undated PowerPoint presentation given by a HR Manager of the respondent, Wendy Endacott (who left the respondent’s employment in May 2022). The principles are said to relate to the right to transfer between duty systems (i.e. between On-Call and Wholetime). The eleven RTA principles are as follows: 24.1. That processes are the same for transfer between duty systems in either direction (Regional policy) 24.2. That processes will be consistent across duty systems and geographical locations within [the respondent] 24.3. That progression through roles will use the National ADC1 toolkit 24.4. That progression will require an individual to be competent and substantive at the role below before they are eligible to access the ADC for the next role level 24.5. That all processes will use recognised validated tools and appropriately trained assessors. QA is essential to be able to pay development and competent rates of pay 24.6. That NFS tests are not used other than for non-FRS applicants entering [the respondent] at Firefighter level (National FOA guidance) 24.7. That selection for a post is a competitive process designed to select the best candidate(s) 1 Assessment & Development Centres also known as “Assessment Centres” – see below. 24.8. That movement between duty systems, at the same role, does not include any test of competence (already deemed competent in role – “firefighter is a firefighter” principle) 24.9. That any movement between roles or duty system will include a skills gap analysis, post selection, in order to identify any relevant training needs 24.10. That internal and external applicants applying for promotion to posts above Firefighter within [the respondent] must have completed the relevant national ADC 24.11. That eligibility for movement between duty systems requires individuals to be in date with their core skills[25]The precise status of this PowerPoint document and the RTA principles within it was unclear - there was some explanation of the history of the RTA principle in a grievance report at [V1:67] and the principles seemingly arose out of previous Tribunal litigation in around 2008 – 2009, concerning part-time working. The RTA principles were frequently referenced during the internal grievance process (see below) and on a number of occasions during the evidence in the present hearing, with each side’s witnesses seeking to draw on principles which suited its own case at given points. We did not find the very general RTA principles to be of particular assistance in deciding the specific legal issues arising in this case.[26]In terms of promotion, during oral evidence, Ms Clarke explained that the NFCC had a national framework for promotion within the fire and rescue service which included a requirement for leadership skills. The framework was not a document before the Tribunal but Ms Clarke explained that the respondent put the NFCC requirement for leadership skills in place via its Assessment Centres. She explained that “competency” (see RTA principle 8 – para 24.8 above) was a term used with reference to the “technical” side of the firefighter role (capability to put out fires, to be in charge of “appliances” (i.e. fire engines) etc), whereas Assessment Centres looked at testing an individual’s potential for leadership.[27]Ms Clarke explained that there were three levels of leadership assessments at Assessment Centres – “leading others”, “leading the function” and “leading the service”. She told us that Wholetime (i.e. full-time and permanent) Crew Managers and Watch Managers needed to have successfully completed the first “leading others” element, via an Assessment Centre. She said that was how the respondent aligned itself with the NFCC framework. She said that if an On-Call firefighter wished to move into Wholetime leadership roles, they needed to have the relevant Assessment Centre qualification – this meant that they had been assessed and deemed suitable by the respondent. We accepted Ms Clarke’s largely unchallenged evidence about promotion and Assessment Centres.[28]We also accepted both Ms Clarke’s and Ms Inglis’ largely unchallenged evidence that the respondent had different recruitment processes for On-Call roles and Wholetime roles and that there were also differences between the recruitment processes applied to external applicants, as compared to On-Call applicants, for Wholetime positions, with reasons given for these differences. In summary: 28.1. The competitiveness of On-Call versus Wholetime fire and rescue service vacancies is vastly different. The level of interest received from On-Call staff wanting to apply for Wholetime roles is significant. 28.2. In terms of internal On-Call staff versus external candidates for Wholetime roles, internal On-Call staff undertake fewer tests and undergo an endorsement process rather than a first contact meeting. There are no requirements for On-Call staff to undertake the practical assessments undertaken by external candidates, which include ladder lifts, ladder climbs, equipment carry, assembly and confined spaced, breathing apparatus. 28.3. The application process for On-Call staff to become Wholetime firefighters must be stringent, as it aims to fairly identify, select and appoint the best On-Call candidates for the Wholetime roles. 28.4. There was no Assessment Centre required, in order to be eligible for promotion from Firefighter to Crew Manager within the On-Call service (as opposed to when seeking to move to a Wholetime role). The reason for this position is due to the restricted number of individuals able to be considered for On-Call promotion roles. Potential candidates must already be On-Call at that particular station and so be able to respond to call outs at that station within five minutes. For many On-Call staff, the On-Call role is not their primary job role. An Assessment Centre requirement for On-Call management roles would limit interest and would risk the respondent being unable to keep the On-Call stations operating as required, because it would not have the managers it needed to run them. 28.5. Where an On-Call Crew Manager or an On-Call Watch Manager wished to apply for a Wholetime role of the same level, or a promotion to a Wholetime role, they were required to undergo the same process that is expected of Wholetime colleagues. This included passing Assessment Centres for leadership roles, at the relevant times in these proceedings after 2020.[29]To illustrate the points above, in the context of the claimant’s internal grievance, Ms Clarke had analysed numbers of applications [V1:161] received by the respondent via different processes over a six-month period (dates not specified). These revealed: 29.1. Three applications made to Modbury station (where the claimant was based in terms of his On-Call role) for On-Call roles 29.2. 278 applications made by existing On-Call staff applying for Wholetime roles 29.3. 1,319 external applicants for Wholetime roles[30]Between 2015 and 2020, Assessment Centres were not used by the respondent to assess leadership skills – the claimant said this during his oral evidence and the respondent’s witnesses agreed with the position. During this period an alternative means of assessment was adopted. This was the Institute of Fire Engineers (“IFE”) qualification level 3, which was required by the respondent for promotion to Wholetime Crew Manager and Watch Manger roles. The claimant did obtain this qualification.[31]We accepted the respondent’s case that Assessment Centres resumed, as a requirement for promotion to permanent Wholetime Crew Manager and Watch Manager roles, at some point during 2020 and were in use by the respondent at the relevant times for the purposes of this claim.[32]Whilst the claimant had undertaken two Wholetime Watch Manager roles, without having been subject to an Assessment Centre (paras 23.6 and 23.7), these were fixed-term, non-operational roles (for four months and eight months respectively), which he was provided with by the respondent in effect as development opportunities. In the circumstances, they were not inconsistent with the general position above. The claimant’s grievance and presentation of the ET1[33]The claimant raised a grievance on 10 November 2022 about several aspects of his treatment.[34]The respondent investigated the grievance - a lengthy (undated) grievance report and appendices began at [V1:44].[35]The claimant presented his ET1 on 7 August 2023.[36]A grievance resolution meeting took place on 13 September 2023, and an outcome letter dated 2 October 2023 followed that meeting [V1:160]. The grievance was not upheld.[37]The claimant appealed the grievance outcome on 14 October 2023. An appeal outcome meeting took place on 20 February 2024 and was confirmed by way of a letter dated 20 March 2024 [V1:180]. The appeal was unsuccessful (in respect of matters relevant to these Tribunal proceedings).[38]We now set out our findings of fact in respect of the four allegations of less favourable treatment. Allegation 1 - Fitness Test – September 2021[39]At the time when this complaint arose, the claimant held two roles, one parttime and one fixed-term; he was respectively, an On-Call Watch Manager and a fixed-term, Wholetime Watch Manager (Policy Procedure and Guidance).[40]The claimant had applied for a substantive Wholetime Watch Manager role during 2021. The precise date of the application was unclear.[41]The backdrop to the claimant’s application was that a HMI inspection and an internal audit had raised concerns within the respondent about a scenario which existed, whereby mandatory fitness tests for firefighters were being conducted by managers within the firefighters’ own stations.[42]The respondent, in response to those concerns, at some point had changed its requirements for fitness tests, such that at the relevant time in September 2021, all applicants for firefighter roles, as part of the selection process had to undertake and pass a bleep test or equivalent, unless a successful VO2 fitness assessment had been undertaken with a “Fitness Advisor” in the last six months.[43]The claimant had passed a fitness test administered by his Station Manager Simon Wonnacott, on 31 August 2021 [V1:111] but that test fell outside the respondent’s criterion above.[44]On 7 September 2021, the claimant took and failed a fitness test (a bleep test). He also completed a swim test, but not within the set time. These tests were in accordance with the respondent’s criterion above. He therefore failed in the recruitment process.[45]The claimant raised a number of concerns about the specific administration of the fitness test he took, including in terms of a pre-existing knee injury and the lack of an alternative test, but these concerns did not relate directly to the legal complaints before this Tribunal so we make no particular findings about them.[46]For the purposes of his legal complaints, the claimant says that he was treated less favourably than a Wholetime, permanent comparator, Adrian Atkinson on the grounds of the claimant’s part-time and/or fixed term status. At this time in 2021, Mr Atkinson held the permanent, Wholetime role of Watch Manager as his substantive role, but he had been working in a nonoperational position since 2019. It was not in dispute, however, that Mr Atkinson’s Wholetime Watch Manager training and qualifications were up to date. He also, crucially, had a valid fitness assessment from a fitness adviser.[47]The comparison which the claimant seeks to make is that Mr Atkinson seemingly wished to undertake a part-time, On-Call role in addition to his full-time, permanent Watch Manager role. The additional role was that of OnCall firefighter at Modbury (being based in that area). In order to take up that additional role, it was accepted that Mr Atkinson was not required to go through a process equivalent to that set out at [V1:88], which set out a flowchart for the process of transferring from On-Call to Wholetime firefighter duty systems. An email in respect of Mr Atkinson’s proposed appointment to the On-Call role was at [V3:50]. As noted in the previous paragraph, the email indicated that Mr Atkinson’s fitness test was up to date.[48]Ms Clarke observed during her cross examination that the two processes (moving from On-Call to Wholetime vs moving from Wholetime to On-Call) were “completely different” – the respondent had to “have a robust process to select the best candidate” for Wholetime roles. This was for the reasons set out earlier from paragraph 28 above.[49]We have addressed the consequences flowing from these findings for the claimant’s claims later in these reasons. Allegation 2 – closed email about Watch Manager role vacancies - December[50]At this point in time, December 2021, the claimant continued to hold the parttime role of On-Call Watch Manager. He had, until 30 October 2021, also held the fixed term role of Wholetime Watch Manager (Policy, Procedure and Guidance) but that fixed-term role had ended after four months, and his next fixed-term role did not commence until April 2022 and so the claimant did not have any fixed-term employment in December 2021.[51]The claimant’s named comparator for this complaint, Ed Durante, was a Wholetime Crew Manager (which we understand was a permanent, full-time role) and an On-Call Crew Manager (which we understand was a permanent, part-time role).[52]The claimant complains essentially that Ed Durante was part of closed group/cohort of the respondent’s staff, in a development pool, who received an email dated 6 December 2021 in respect of Wholetime Watch Manager vacancies [V1:139]. The recipients of the email were not apparent on the face of the email. The body of the email said (emphasis added): Subject: FW: Watch Manager Vacancies Available The Service currently has a number of Watch Manager vacancies, and as you were successful at the Watch Manager process last year, we would like to invite you to express an interest in any of the vacancies which are detailed as follows…[53]The listed vacancies in the email included the Watch Manager - Policy, Procedure & Guidance role which the claimant had, until the end of October 2021, held on a fixed-term basis.[54]The email was not received by the claimant as he was not part of the cohort/development pool who had been successful at the earlier Watch Manager process. The respondent’s case, as explained by Ms Inglis and which we accepted, was that, at the relevant time, all staff were required to go through an Assessment Centre process which assessed leadership potential in line with the NFCC framework in order to be able to progress into a permanent, Wholetime Watch Manager role (see from para 26 above). The claimant had not done this but those in the development pool/cohort had done so.[55]We also accepted the respondent’s evidence that it was open to the claimant to have applied for an Assessment Centre. The claimant appeared to be of the view that he did not need to go through the Assessment Centre process because of his skills, experience and other qualifications (such as the IFE) which he considered demonstrated his leadership skills.[56]Mr Durante, although seemingly in the cohort/development pool for Watch Manager roles, did not appear from the available evidence before us (a role history printout) to have been appointed to, or indeed to have held at any time a Watch Manager position, either before or after December 2021, but we understand he was named as a comparator simply as a recipient of the relevant email.[57]We have again addressed the consequences flowing from these findings for the claimant’s claims later in these reasons. Allegation 3 – Crownhill Watch Manager Role – August 2022[58]By this time, August 2022, the claimant held the part-time role of On-Call Watch Manager and the fixed-term role of Watch Manager - R&D (which he held from April 2022 until December 2022). The latter role was not a frontline role but the former was.[59]This complaint only concerned alleged less favourable treatment on the ground of fixed-term status.[60]The claimant’s named comparator was Adrian Atkinson, as with Allegation 1. Mr Atkinson at this time was a (permanent) Wholetime Watch Manager at Paignton, in a non-frontline role.[61]We accepted the respondent’s evidence, which was not challenged, that in August 2022, it faced recruitment controls. It had therefore committed to offering substantive (i.e. permanent) Wholetime Watch Managers undertaking “Green Book” roles (non-operational, administrative roles) the opportunity to take up “Grey Book” roles (operational and control staff roles).[62]What this meant was that substantive Wholetime Watch Managers were encouraged to make a lateral transfer from the non-operational role which they were occupying, into an operational role. The respondent’s explanation was that this lateral transfer process fitted its existing recruitment policies, because it made for better use of resources, it did not increase its headcount (i.e. numbers of substantive Wholetime Watch Managers remained the same) and it potentially made costs-savings by avoiding a recruitment exercise.[63]The claimant expressed an interest in making a lateral transfer to become a Watch Manager at Crownhill (one of two potentially available in August 2022) but this was rejected. He was told this by email on 31 August 2022 [V3:49]: …unfortunately you do not meet the eligibility criteria… To be eligible for this role, you need to be in a permanent, substantive, Wholetime Watch Manager role. If we do not fill this vacancy via a lateral move of Wholetime Watch Manager to Wholetime Watch Manager, then role will be readvertised as a promotion process. If this is the case, then you will be eligible to re-apply at that time if you are in a temporary Watch Manager post or have passed an assessment centre and are part of the development pool…[64]The respondent’s witnesses explained that for the purposes of the potential lateral transfer, the claimant was not eligible because(i) he was not part of an existing pool of substantive Wholetime Watch Managers,(ii) he had not completed the necessary Assessment Centre to be eligible to become part of that pool and(iii) he was also already in an operational role (i.e. his substantive On-Call Watch Manager role at Modbury), whereas the rationale of the lateral transfer route was to try and move non-operational, Wholetime staff into the operational roles.[65]In the event, only one of the two Watch Manager roles was filled by lateral transfer. It was unclear to us from the available evidence whether in fact it was Mr Atkinson, the claimant’s chosen comparator, who made the one lateral transfer. A printout of Mr Atkinson’s employment history which was produced towards the end of the hearing did not indicate that he did so. Mr Atkinson appeared instead to have remained in the same Watch Manager Role at Paignton between 4 April 2022 until 30 June 2023[66]As only one of the two operational Wholetime Watch Manager roles was filled by lateral transfer, the respondent then opened up the remaining vacancy. The claimant applied, was interviewed and was unsuccessful. The fact that the claimant was able to apply (see the email above in para 63) and was shortlisted for interview, despite not having passed a Watch Manager Assessment Centre, seemed to us to be an anomaly or inconsistency with reference to the respondent’s general position on Assessment Centres and promotion to Wholetime Watch Manager roles. This anomaly was not explained by the evidence before us; we were also not told why the claimant had not succeeded at interview. In any event, the claimant’s complaint in these proceedings about this recruitment exercise concerned the first stage of the process only and his exclusion from the lateral move exercise.[67]We have again addressed the consequences flowing from these findings for the claimant’s claims later in these reasons. Allegation 4 – “Demotion” September 2022[68]This final complaint is made on the ground of the claimant’s part-time status only. At the relevant time, the claimant held the part-time role of On-Call Watch Manager (which in fact ended with this incident and he became an On Call Crew Manager, a lower rank). He also held the role of fixed-term, Wholetime Watch Manager R&D role at this time, albeit not relevant to the allegation.[69]The claimant’s chosen comparator for Allegation 4 was Pete Watts. Mr Watts’ substantive role was that of Operational Readiness Manager, a Wholetime role. He had also held an On-Call Watch Manager role at Modbury until the start of 2019, but had then commenced a period of unpaid leave (see para 73 below).[70]The claimant was promoted from his previous role of On-Call Crew Manager (Modbury) to cover Mr Watts On-Call Watch Manager (Modbury) role in July 2019, referred to as a temporary promotion.[71]On 7 January 2022, however, after around two-and-a-half years in the OnCall Watch Manager role, the claimant received a letter from the respondent at [V1:189] which said: Dear Andy Competent Watch Manager Further to our letter dated 28th June 2021 advising you of your conditional appointment to Watch Manager on your On Call contract and the forms recently completed, I am pleased to confirm that you have successfully completed Phases 1 and 2 of your development programme and therefore your promotion is now substantive. I wish you continued success with your career. Yours sincerely, Wendy Endacott HR Operations Manager[72]The author of the letter, Wendy Endacott, had left the respondent’s employment in May 2022. The letter appeared to us to confirm the claimant’s promotion to the On-Call Watch Manager role which he held at Modbury on a substantive i.e. permanent basis. We did not have the earlier letter dated 28 June 2021 referred to above and we noted the claimant appeared to have been temporarily promoted back in July 2019. Nonetheless, we find that a reasonable reading of the letter from Ms Endacott was that he was now confirmed as the substantive On-Call Watch Manager (Modbury) – that was the only On-Call Watch Manager role which the claimant held and he still held it in January 2022.[73]What occurred later in 2022 was explained by the evidence of Ms AndersonThorne, which was largely unchallenged (save in respect of the policy mentioned below) and which we accepted in the main. She explained, historically, that four of the respondent’s staff, including the named comparator Pete Watts, had been asked to undertake a Wholetime Station Manager “flexi duty rota”. The nature of the flexi-duty rota role was originally not seen by the respondent as compatible with the incumbent also undertaking the minimum contract for an On-Call role. This resulted in the position that staff placed onto the flexi-duty rota would need to either leave their On-Call role or take unpaid leave from that role. The affected staff decided to take unpaid leave from their On-Call roles (in Mr Watts’ case, from the On-Call Watch Manager position at Modbury) and the roles were backfilled temporarily (in his case by the claimant who undertook the Modbury Watch Manager role, from July 2019).[74]We were taken during cross-examination of the respondent’s witnesses (and in closing submissions on behalf the claimant in respect of Allegation 4) to the respondent’s Discretionary Leave Procedure [V2:41-54]. This was mainly with reference to a “career break” section of the procedure and to the absence of any express reference in the procedure to “unpaid leave” being utilised on a longer-term basis, as it was in the case of Mr Watts when on the flexi-duty scheme. We did not find the policy or its contents to be of any assistance in deciding the issues arising in the case, as is apparent from our findings below, but we mention it for completeness given the time spent on it during the hearing.[75]A review of the flexi-duty rota process, which Mr Watts was still carrying out in September 2022 and had been since early 2019, was undertaken by the respondent at some point earlier in 2022, arising out of concerns about an adverse impact on pensions of those undertaking the flexi-duty roles, such as Mr Watts. The review concluded that flexi-duty officers could now provide the necessary flexi-duty rota cover in their On-Call roles and so the respondent then allowed them to return to their On-Call roles if they wished to return, which Mr Watts did.[76]The difficulty here was that the claimant had in the meantime been told that the On-Call Watch Manager role at Modbury was now his substantive role, earlier in 2022, by Ms Endacott. As such, from his position, the promotion to that role was effectively no longer a temporary one after the January 2022 letter. Notwithstanding this, the claimant was effectively “bumped” (our term) out of that role by the respondent and back to his former role of On-Call Crew Manager at Modbury to accommodate Mr Watts returning to the more senior role of On-Call Watch Manager at Modbury.[77]We do accept the claimant’s characterisation of his treatment as a “demotion”, in the circumstances. We also find, however, that the respondent mistakenly believed, at the time (and still maintained at the present hearing) that the claimant’s substantive role had remained that of On-Call Crew Manager and that he had only been filling the more senior On-Call Watch Manager role temporarily during Mr Watts’ unpaid leave from 2019 to 2022 to undertake the flexi-duty rota scheme.[78]What these findings mean, in terms of the legal claim which the claimant has brought as a consequence of his treatment in these proceedings, we have again addressed later in these reasons.
The Relevant Law
[79]We summarise the relevant law which we have considered as follows.[80]The relevant provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the PTWR”) are as follows: Regulation 2. – Meaning of full-time worker, part-time worker and comparable full-time worker(1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full-time worker.(3) ….(4) A full-time worker is a comparable full-time worker in relation to a parttime worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes placea. both workers arei. employed by the same employer under the same type of contract, and ii. engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and b. the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements. Regulation 5. – Less favourable treatment of part-time workers (1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time workera. as regards the terms of his contract; or b. by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only ifa. the treatment is on the ground that the worker is a part-time worker, and b. the treatment is not justified on objective grounds. (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. … Regulation 8. – Complaints to employment tribunals etc. … (1) …a worker may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation (5)… … (6) Where a worker presents a complaint under this regulation it is for the employer to identify the ground for the less favourable treatment or detriment.[81]What therefore arises is a comparative exercise, the comparison being between the part-time worker and a potentially comparable full-time worker, defined under Regulation 2(4) as a worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a broadly similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills (see Matthews v Kent and Medway Towns Fire Authority [2006] UKHL 8).[82]Crucially, and unlike direct discrimination claims under the Equality Act 2010, the comparison under the PTWR must be made with an actual comparator, rather than a hypothetical comparator (see Carl v University of Sheffield [2009] ICR 1286).[83]The comparison is made at the time when the alleged less favourable treatment took place (see Reg 2(4) and Clayson v MOJ [2024] EAT 99). This entails that the part-time worker must be part-time and the full-time comparator must be full-time at the particular time when the treatment occurs.[84]When assessing whether the treatment complained of was on the ground of part-time status, the test to be applied by the Tribunal is the “reason why” the claimant was treated that way – it is not a “but for” test (see Gibson v Scottish Ambulance Service EATS 0052/04 and Sharma v Manchester City Council 2008 ICR 623, EAT). The “reason why” test requires the Tribunal to examine the reason or motive, conscious or subconscious, for the less favourable treatment in question; a “but for” test” would ask whether, but for the worker’s part-time status, he or she would have been treated in the same way.[85]Perceptions of fairness do not come into play in assessing whether there has been less favourable treatment on the ground that the claimant was a part-time worker. For example, a respondent is not required to show that the reason for any difference in treatment of a claimant is good, desirable, fair or equitable (see the EAT decisions in Dodds v Ministry of Justice [2023] EAT 31 at paras 146, 157, 188 – 190, and 204(i) and Clayson (above) at paras 73 – 74). Perceptions of fairness may become relevant to the final question of objective justification below, which arises only if it is found in the first place that there has been less favourable treatment on the ground of the claimant’s part-time status.[86]There is conflicting EAT authority as to whether a claimant has to show that their part-time status was the “sole” reason for the treatment or “the effective and predominant cause”. In the most recent case on the point, Augustine v Data Cars [2024] EAT 117, the EAT felt bound by the test of “sole reason”.[87]The final issue of objective justification (Reg 5(2)(b)), arises only if there is found to have been less favourable treatment of the claimant on the grounds of their part-time status. If there has been, but the respondent then established that the treatment in question was objectively justified, the treatment is not unlawful under the PTWR. In O’Brien v Ministry of Justice (formerly Department for Constitutional Affairs) 2012 ICR 955, ECJ, the ECJ stated that “the concept [of] ‘objective grounds’… requires the unequal treatment at issue to respond to a genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose”. When the same case came back to the Supreme Court, it observed that the ECJ was repeating the “familiar general principles applicable to objective justification: the difference in treatment must pursue a legitimate aim, must be suitable for achieving that objective, and must be reasonably necessary to do so” (Ministry of Justice (formerly Department for Constitutional Affairs) v O’Brien 2013 ICR 499, SC). The Supreme Court stated that the unequal treatment must be justified “by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria for examining the question whether that unequal treatment responds to a genuine need and whether it is appropriate and necessary for achieving the objective pursued”. Fixed Term Employees – less favourable treatment[88]The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“FTER”) contain broadly equivalent provisions to the PTWR concerning less favourable treatment on the grounds of fixed-term status. The definition of a fixed term employee is contained in Regulation 1 (there is no dispute in this case that the claimant was a fixed term employee at the relevant times). Provisions about comparable employees are in Regulation 2 (“fixed term” and “permanent” employees) and the “same or broadly similar” work test in the PTWR applies and again the comparison is made at the time of the alleged less favourable treatment. Again, an actual comparator is required.[89]Less favourable treatment is set out in Regulation 3 FTER in a materially similar fashion to Regulation 5 of the PTWR above. There is specific reference to recruitment to permanent vacancies in Regs 3(2)(c), (6) and (7) which provide a right not to be treated less favourably than comparable permanent employees when it comes to being informed of vacancies.[90]The approach and law applicable to determining FTER claims therefore essentially mirrors that set out above in respect of the PTWR between paras 81 and 87. Submissions[91]We received an opening written submission from Mr Cheetham and heard oral closing submissions from Mr Cheetham and then from Mr Ashby. Respondent’s closing submissions in summary[92]Mr Cheetham submitted as follows: 92.1. The respondent had set out the legal test in its opening written submissions. 92.2. Allegation 1 – September 2021 - “the fitness test”: 92.2.1. The respondent accepted the claimant’s part-time and fixedterm status at this time and that the comparator, Aidrian Atkinson, was a Wholetime Watch Manager at this time. The complaint was that the claimant was required to take an additional fitness test which he claimed was less favourable treatment. 92.2.2. Firstly, there was no evidence that the claimant was required to take an additional test. Ms Clarke gave evidence on this at paragraphs 17-19 of her witness statement which was not disputed. The claimant’s fitness assessment was outside the six-month time period and his bleep test had not been conducted by a qualified fitness advisor. 92.2.3. The claimant was saying that that this was an error on the part of the respondent. He should not have been required to undertake an additional fitness test and the administrator of the test he undertook was sufficient. In effect, he was saying he had already done them. 92.2.4. Whether fair or unfair, he was not treated differently to any other applicant. The requirement was for a valid fitness test within the six-month period overseen by a qualified Fitness Advisor and not by a Station Manager or Fitness Advocate. 92.2.5. A comparison with Adrian Atkinson was difficult. He had the necessary qualifications and he was maintaining them. There was an important difference between a Wholetime and an OnCall firefighter. If Wholetime, the firefighter was constantly having skills and fitness tested. If On-Call, they may be working just two hours per week - the service cannot know if they are maintaining qualifications and fitness. Adrian Atkinson had maintained his qualifications and fitness in his WT role. He was looking to provide additional cover for the station as an On-Call firefighter. 92.2.6. The claimant’s witness statement at paragraph 10 said that Adrian Atkinson was “in date” for his fitness whereas the claimant was not. This test requirement may have felt unfair but it applied to everyone. 92.2.7. Was the less favourable treatment because of the claimant’s part-time or fixed-term status? No, because the test applied to all applicants. If less favourable treatment was found, it must be a legitimate aim to ask for a level of fitness and a proportionate means to set time periods and by whom applicants are assessed. This was not discriminatory even if perceived as unfair so the complaint therefore fails. 92.3. Allegation 2 - December 2021 - “the closed group”: 92.3.1. Mr Cheetham pointed out that the claimant’s witness statement did not deal with comparators (named at the start of the present hearing) and the respondent had struggled to know who these individuals were in the prior Tribunal hearings. He said it was disadvantaged for not knowing this (until the start of the present hearing). In cross-examination the claimant had been raising new points and there had been a lack of clarity. Now we had Ed Durante named (for Allegation 2) and the complaint was not included in the witness statement. 92.3.2. The claimant said he was “deemed competent”. He was deemed competent and had a CV to be proud of, but if the service required everyone thinking of promotion to go through an Assessment Centre, that requirement applied to him and everyone else. This was stated in Ros Clarke’s witness statement at paragraph 26. There was nothing stopping the claimant attending an Assessment Centre. The claimant was “competent” in technical skills, but the Assessment Centre was to assess leadership qualities. 92.3.3. In December 2021 it was a requirement to have been through an Assessment Centre to be eligible to apply. Ed Durante had done that. The claimant’s non-eligibility was not on the grounds of being part-time but because he did not meet the requirement of having attended an Assessment Centre. This was what was in the mind of the employer. 92.3.4. If we were against him on this, Mr Cheetham continued, the respondent’s policy of requiring applicants to attend an Assessment Centre was a legitimate aim in terms of having those seeking leadership roles to have the necessary leadership skills. Giving all of its staff the opportunity to attend an Assessment Centre was a proportionate means of achieving that legitimate aim. 92.3.5. Mr Cheetham said he could see why it might feel unfair to the claimant, but the claimant was not singled out or treated differently. His “prevention” from applying for the role of Wholetime Watch Manager was not his part-time status but the need to attend an Assessment Centre. 92.4. Allegation 3 - August 2022 – Crownhill Watch Manager recruitment 92.4.1. Adrian Atkinson was the chosen comparator. The complaint was that the claimant was not allowed to apply. The claimant was just not included in the initial two-week process of lateral moves. When the recruitment was opened up the claimant applied but was not successful at interview. 92.4.2. There had been no evidence from the claimant as to why the respondent’s evidence should be rejected. There was no mention in the cross examination of the respondent’s witnesses of discrimination; it was more about unfairness. Ms AndersonThorne’s witness statement dealt with this allegation at paragraphs 15-19. The claimant was not part of the cohort doing Green Book roles; he already held an operational role (his On-Call Watch Manager role). 92.4.3. The less favourable treatment complaint was that he was not allowed to apply, but this was not because he was part-time or fixed-term, but because the initial focus was on one group of employees. 92.4.4. Were the Tribunal to find less favourable treatment, then the legitimate aim was for a more efficient use of resources and costs in order to run the service efficiently and cost effectively. The proportionate means was to limit the potential applicants for two weeks in the hope of not having to increase headcount and run a full recruitment process. It was not because of fixedterm status. There were clear arguments on justification and the claimant’s challenges at the hearing had not gone to the issues the Tribunal had to decide. 92.5. Allegation 4. September 2022 – alleged demotion: 92.5.1. Mr Cheetham pointed out that the chosen comparator was Pete Watts and the less favourable treatment complaint was of facilitating the demotion of the claimant. 92.5.2. The claimant referred to the letter at [V1:189] from Wendy Endacott indicating that his role as Watch Manager On-Call was now substantive. What the claimant was describing was the termination of his position. He may see it as really unfair that Pete Watts “swans off” and after three years decided to come back and take up his role. 92.5.3. Mr Cheetham was struggling with who the comparator should be in this instance. Was it someone who was a permanent fulltime employee not demoted in order to enhance his pension? It was a struggle to see how a comparison worked as the comparison was not like with like. Mr Watts was the reason the claimant lost the role. 92.5.4. The loss was not due to the claimant’s part-time status. It was to do with alleged unfairness and there was little challenge to the respondent’s witnesses’ evidence. 92.5.5. It was also a struggle to look at justification for this allegation. The aim of the treatment was to allow permanent Wholetime staff to take opportunities. There was no demotion and Mr Cheetham struggled to formulate any other arguments on justification, given the problems with the comparison the claimant sought to make. The claimant’s submissions[93]Mr Ashby submitted as follows: 93.1. There was an On-Call prominence within the respondent. The OnCall staff had the same role maps, the same equipment, the same appliances as Wholetime staff. There were no differences in dealing with incidents and the expectations were the same for fitness tests. 93.2. With reference to the September 2021 application process from OnCall to Wholetime, the claimant was within date for his fitness test in 2021. He had taken one in August 2021. He was then asked to perform an additional fitness test as part of the application process. For Wholetime to On-Call there was no fitness test. Adrian Atkinson was also within one year of his fitness test. The service had a duty of care to ensure the fitness of everyone so it should have applied the test to those Wholetime staff moving to On-Call. 93.3. Between 2015 to 2020 there were no Assessment Centres. A lateral move (from On-Call to Wholetime) was via IFE qualifications. The claimant had taken these and passed. Post-2020, Wendy Endacott in HR had confirmed that he was eligible to apply for Wholetime Watch Manager posts. 93.4. At the time of the Crownhill recruitment exercise in August 2022, the claimant was a in a fixed-term Watch Manager role – “grey book in a green book role”. As a fixed-term, Wholetime Watch Manager, he should have been allowed to apply for the Crownhill role as a lateral transfer in the initial two weeks of the recruitment process. 93.5. The final allegation did involve a “demotion”. The respondent’s policy was that staff could not be on unpaid leave for more than six months unless there were exceptional circumstances, as per the career break section of the policy – they would be deemed to have resigned. Mr Ashby believed that this was why the claimant was confirmed as substantive in his Watch Manager role. That meant that he was permanent in that role. Discussion and conclusions[94]We applied the legal framework summarised above at paras 79 to 90 to the facts as we found them to be.[95]In general terms, we found that the claimant’s case did not engage with the relevant legal tests, and focused primarily on issues of unfairness. This was particularly apparent when it came to comparing the treatment of which the claimant complained with the situations of his chosen comparators, recalling that the complaints in each case require an actual comparator. As is clear from the legal summary and as was stated several times during the hearing, the case which we had to decide was not about “fairness”.[96]Whilst there is no definition of what is meant by “less favourable” treatment within the PTWR or the FTER, the phrase self-evidently entails a comparison of sufficiently similar, or broadly equivalent, situations save for a difference in part-time/full-time or fixed term/permanent status (as applicable).[97]The comparison plainly requires, for PTWR purposes, the position of a more favourably treated full-time worker to be compared to the position of a lessfavourably treated part-time worker. The PTWR do not, for instance, prohibit merely “unfavourable” or “unfair” treatment of workers who happen to be parttime or treatment which is merely connected in some way to part-time status (the equivalent position also applies to the FTER).[98]Support for the proposition in the above paragraph (if required) can be drawn from the guidance on the comparison arising under the same phrase, “less favourable” treatment, within the direct discrimination provisions of the Equality Act 2010 (sections 13 and 23): “On a comparison of cases for the purposes of section 13…there must be no material difference between the circumstances relating to each case”. This point is particularly relevant in the present case, given the comparisons which this claimant seeks to make with the treatment of his named comparators. The less favourable treatment provisions of the PTWR and the FTER are in effect types of direct discrimination.[99]Consequently, less favourable treatment on grounds of part-time or fixedterm status cannot be established by pointing to situations where either: 99.1. the employer applies the same requirement to all staff in an equivalent position, whether part-time or full time/fixed term or permanent (as applicable). For example, a requirement that all staff must have a particular qualification or have achieved a particular level of achievement in order to be considered for promotion (provided of course that there is no prohibition on part-time/fixedterm staff obtaining that same qualification as such a prohibition in itself may be unlawful); or 99.2. the situations of the(i) part-time vs full-time worker or(ii) fixed term vs permanent employee are simply not comparable in any meaningful way. In other words, their situations are not sufficiently similar/are too different to enable the necessary comparison under the PTWR/FTER (in order to conclude that treatment is “less favourable”) to be made. Such treatment would simply be different because the underlying situations are different, as opposed to one being said to be less favourable than the other. The common expression of comparing “chalk and cheese” is apt here.[100]We now set out our findings on the claimant’s specific complaints. Conclusions on Allegation 1 – Fitness Test Issue[101]We have concluded that the claimant was not treated less favourably than Adrian Atkinson, his named comparator for this complaint. The respondent applied the same requirement of having a valid fitness test, conducted by a Fitness Adviser, to all of its staff seeking to transfer at that time. Mr Atkinson had the necessary in-date fitness test, as part of his main Wholetime Watch Manager role, for moving to an On-Call firefighter role. The claimant did not have a valid fitness test which met the respondent’s requirements (the test had been conducted by his Station Manager) and so he was required to take a fitness test for the purposes of his application (and failed). Allegation 1 therefore fails in the absence of less favourable treatment as compared to an actual comparator.[102]In addition, the claimant would need to establish that any treatment was caused solely (or at least predominantly) by either his part-time status or his fixed term-status, for the purposes of Allegation 1. Both of those statuses self-evidently could not have been the “sole” or “predominant” cause of the same treatment (and the same point applies to Allegation 2). In any event, we concluded that the “reason why” the claimant was required to undertake the fitness test was because of the respondent’s policy at the time and because he did not have a valid fitness test. The reason therefore had nothing to do with either his part-time or his fixed term status.[103]Furthermore, we would in any event have found that the respondent had a legitimate aim of assessing the level of fitness of its staff, given the nature of the work, and that the means of achieving this (against the backdrop of concerns raised by HMI and an internal audit) was proportionate. The treatment complained of, having to undertake the fitness test, was therefore objectively justified.[104]We do acknowledge the claimant’s perception that his treatment in respect of the fitness test had been unfair, in light of various concerns of his around the administration of the particular fitness test and a pre-existing injury, and that he had recently passed a non-recognised fitness test by the Station Manager, giving rise to a clear sense of frustration on his part. Neither of these matters, however, amount to less favourable treatment under the PTWR or the FTER.[105]Allegation 1 therefore fails for the various reasons above. Conclusions on Allegation 2 – the closed email group/cohort for Wholetime Watch Manager vacancies[106]We have concluded that the claimant has not established that he was treated less favourably than Ed Durante by way of the claimant’s omission from the December 2021 email setting out current Watch Manager vacancies. Rather, the respondent again applied the same requirement to everyone seeking a Wholetime Watch Manager role at that time, namely to have attended and passed a Watch Manager Assessment Centre in respect of leadership skills. The email was sent to a group who had passed an Assessment Centre and it was believed that this group may have included the chosen comparator, Ed Durante, but no witness at the hearing could be certain of this (Mr Durante having been named as the comparator only at the start of the present hearing). The claimant had not passed an Assessment Centre and therefore was not eligible for the Wholetime roles.[107]At the relevant time (December 2021) the claimant held only a part-time (On- Call) role – he did not hold a Fixed-Term role, and so no possible complaint of less favourable treatment under the FTER could arise in any event (see para 83). At the time of the less favourable treatment, the claimant must be fixed-term and the comparator must be permanent and that was not the case here.[108]Furthermore, we conclude that the “reason why” the claimant was not included in the email group/cohort was that he had not passed an Assessment Centre for Watch Managers. It was not on the ground of his parttime status. Allegation 2 would also have failed on this basis, even if less favourable treatment had been established.[109]Finally, we would in any event have found that the respondent’s treatment was objectively justified. It had a legitimate aim of assessing the leadership skills of its staff seeking promotion to Wholetime roles, and of ensuring that the best candidates were appointed to these highly competitive Wholetime vacancies, and the chosen means of achieving this from 2020, by way of Assessment Centres, was proportionate.[110]For the various reasons set out above, Allegation 2 therefore also fails. Conclusions on Allegation 3 – Crownhill Watch Manager role vacancy – exclusion from lateral transfer process[111]The complaint here is on the ground of fixed-term status only, namely that the claimant was not permitted to move laterally into a permanent Wholetime Watch Manager role at Crownhill on that ground.[112]We have concluded in the first place that the claimant has not named an appropriate comparator, in terms of establishing less favourable treatment. There was no evidence that Adrian Atkinson was appointed by way of a lateral move from a non-operational role into the Crownhill role. There was no evidence before the Tribunal at all as to who was in fact appointed in the one initial lateral move which occurred. The claimant has therefore failed to establish that he was treated less favourably compared to a permanent[113]The “reason why” the claimant was not permitted to move laterally into a permanent Wholetime Watch Manager role was also not on the ground of his fixed-term status. The reasons of the respondent, which we accepted, were(i) that he had not passed an Assessment Centre and(ii) that his substantive role (On-Call Watch Manager) was already operational and the point of the lateral move exercise was to move Watch Managers from non-operational roles into operational roles.[114]Whilst the claimant’s complaint only related to the first stage of the August 2022 process, namely the refusal of a lateral move, in passing we do find it anomalous that the claimant was able to interview at next stage (when the remaining vacancy was opened up), albeit he was unsuccessful. He was permitted to interview in this instance notwithstanding that an Assessment Centre had not been completed by him. This anomaly was not explained by the evidence before us but we did also note that the claimant had been given two non-operational Wholetime, fixed-term, Watch Manager roles as development opportunities despite not having passed an Assessment Centre (see para 32 above).[115]Finally, whist the claimant’s case on Allegation failed for the reasons already given, we would also have accepted the respondent’s case on objective justification of the lateral transfer process. In summary: 115.1. The respondent had a legitimate aim of seeking to increase the number qualified Watch Managers carrying out operational roles without incurring additional recruitment and training costs. 115.2. Filling vacant Watch Manager roles by internal lateral transfer from non-operational roles was a proportionate means of achieving that aim, drawing first from the pool of employees with the requisite experience and potentially avoiding the time and cost of a recruitment process. Recruiting from outside the existing pool of substantive Wholetime Watch Managers would have increased the headcount.[116]Allegation 3 therefore fails for the various reasons above. Conclusions on Allegation 4 – the demotion issue[117]This complaint was of less favourable treatment because of part-time status only, with Pete Watts named as the claimant’s full-time comparator.[118]The treatment complained of here was that the claimant was in effect ‘bumped’ out of/demoted from his On-Call Watch Manager (Modbury) role to his previous role of On-Call Crew Manager (Modbury) by Pete Watts, the previous incumbent of the same On-Call Watch Manager role.[119]By way of observation, we understood and recognised the claimant’s sense of grievance and unfairness here, having been confirmed in this On-Call role on a substantive basis earlier in 2022 and then having been removed from it by the respondent. We agree that this treatment did in effect amount to a “demotion” as the claimant characterised it. We noted that the claimant did not at the time, for example, resign and pursue of a Tribunal claim for constructive unfair dismissal, or bring a Tribunal claim for unfair dismissal, in respect of the loss of the On-Call Watch Manager role.[120]We have concluded that this treatment, unfair though we observed it to have been, was not, less favourable treatment by way of a comparison with a suitable actual full-time comparator. We do not accept that Pete Watts was an appropriate comparator. His situation was very different and distinct from that of the claimant. Mr Watts did hold a separate Wholetime role but was allowed to return to the On-Call (part-time) role he had held before his unpaid leave from that same On-Call role had commenced in 2019. This is not remotely comparable to the claimant’s own situation on any view.[121]Seeking to construct a suitable full-time comparator and identifying the characteristics that individual would require for a valid PTWR comparison in respect of the complaint raised under Allegation 4 was tortuous. We concluded that a suitable full-time comparator for the claimant’s complaint of demotion would need to be as follows: 121.1. The comparator themselves would need to be an actual full-time (Wholetime) employee of the respondent in a similar position to the claimant i.e. who was also at risk of being bumped out of/demoted from their substantive role but who was not so bumped/demoted. 121.2. There would, as the backdrop in this same convoluted scenario, need to be another employee (who was in a broadly similar situation to Pete Watts) who: 121.2.1. had a Wholetime (i.e. full-time rather than On-Call) role; and 121.2.2. who then went from that Wholetime role to do a flexi-duty role, taking unpaid leave from the substantive Wholetime role; and 121.2.3. who then sought to return to their former substantive role which was occupied by the comparator in para 121.1 above (in this case a Wholetime role); but 121.2.4. was not permitted by the respondent to do so, so allowing the full-time, Wholetime comparator to keep their job.[122]The full-time comparator in para 121.1 above would therefore, on the face of it, have been treated more favourably than the claimant by being able to keep their role and not being bumped/demoted.[123]There was no evidence before us of an actual comparator in the position above, which is unsurprising given the tortuous nature of the necessary comparison. So, Allegation 4 fails because there was no less favourable treatment.[124]Allegation 4 would also have failed at the “reason why” stage. The reason why the claimant was demoted/bumped was not on the ground of his parttime status. Rather, we have found that the respondent mistakenly believed that it could simply slot Pete Watts back into his former role and did not accept or believe that the claimant had been substantively promoted to the On-Call Watch Manager role in the meantime and in the absence of Mr Watts. That treatment may have been unfair on the claimant, as we have observed, but it was not because of part-time status in any way, as would be required for the claim which the claimant had brought in these proceedings.[125]The issue of objective justification does not therefore arise in respect of Allegation 4, as there is no less favourable treatment on the ground of parttime status which requires justification by the respondent. If objective justification had arisen, it is difficult to see on what basis the respondent could have justified the treatment of the claimant in this instance.[126]Allegation 4 therefore fails for the reasons above, namely that there was(i) no less favourable treatment of the claimant(ii) on the ground of his part-time status, notwithstanding our observations on the unfairness of the underlying treatment of the claimant. Overall conclusion[127]For the reasons set out above, the claimant’s claims of less favourable treatment on grounds of part-time and fixed-term status fail and are dismissed.