Mathews & Ors v Kent & Medway Towns Fire Authority & Ors [2004] EWCA Civ 844

Case No A1/2003/1885 EATRF[2004] EWCA Civ 844
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE BIRTLES
EAT/0968/02/ILB
Venue Royal Courts of JusticeDate Friday 2 July 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE JONATHAN PARKERLORD JUSTICE LONGMORELORD JUSTICE MAURICE KAY
Between
MR.B.R.MATHEWS AND OTHERSApplicants/(1) KENT & MEDWAY TOWNS FIRE AUTHORITYRespondent s(2) THE ROYAL BERKSHIRE FIRE AND RESCUE SERVICESRespondent(3) THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Brian Langstaff QC and Martin Seaward (instructed by Messrs Thompsons) for Applicant/AppellantsJohn Bowers QC and Nicholas Chronias (Solicitor) (instructed by Beachcroft Wansbroughs) for 1 st and 2 nd Respondents.Nicholas Paines QC and Raymond Hill instructed by Treasury Solicitor) for 3 rd Respondents
JudgmentLord Justice Maurice Kay :
[1]It is a commonplace that one of the characteristics of the current labour market is flexibility. This has led to an increase in employment relationships based on part-time working, temporary employment, seasonal work and the like. In this country and elsewhere employees who were engaged under such arrangements were generally denied or were unable to qualify for the range of employment rights which have been bestowed by legislation over the last forty years. Their contractual terms were often less advantageous. So far as part-time workers are concerned, they have now been provided with a degree of protection by the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”). The Regulations were promulgated pursuant to section 19 of the Employment Relations Act 1999 and are designed to implement Council Directive 97/81/EC, which in turn was concerned to give effect to the Framework Agreement on part-time work which was concluded between the Union of Industrial and Employers Confederations of Europe, the European Trade Union Confederation and the European Centre of Enterprises with Public Participation. Clause 1 of the Framework Agreement provides :
“The purpose of this Framework Agreement is: “(a) to provide for the removal of discrimination against part time workers and to improve the quality of part time work ; (b) to facilitate the development of part time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers” “(a) to provide for the removal of discrimination against part time workers and to improve the quality of part time work ; (b) to facilitate the development of part time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers”
[2]It is well known that the Fire Services in this country employ both full-time firefighters and “retained firefighters”. The latter group are, in common parlance, part-time firefighters. There are over eleven thousand of them throughout the country. It is obviously in the nature of fire and rescue services that demand for them is unpredictable and urgent. The purpose of maintaining a large pool of retained firefighters is clearly to ensure that there will be sufficient firefighters to cope with demands, whilst at the same time avoiding the need to maintain a larger full-time establishment which would be over-manned save at peak periods.[3]In this appeal the Appellants are representative of all the retained firefighters throughout the country. They claim that they are treated less favourably than comparable full-time firefighters in that they are denied access to statutory pension arrangements, they are denied increased pay for additional responsibilities and their sick pay arrangements are calculated on a less favourable basis. Although the retained firefighters work part-time, the first issue in this appeal is whether they are “part-time workers” within the meaning of Regulation 2. If they are, the second issue is whether their full-time colleagues are “comparable full-time workers” within the meaning of that regulation.[4]The Regulations The important provisions for present purposes are Regulations 2 and 5 which I now set out in reverse order. Regulation 5 provides: “(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 worker –(a) 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 if – (a) 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.” (a) 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. (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds. Regulation 5 therefore raises the questions: Who is a full-time worker? Who is a part-time worker? And who is a comparable full-time worker? The answers are to be found in Regulation 2, which is in these terms: “(1) A worker is a full-time worker….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…..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) For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract – (a) employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship; (b) employees employed under a contract for a fixed term that is not a contract of apprenticeship;(c) employees employed under a contract of apprenticeship;(d) workers who are neither employees nor employed under a contract for a fixed term;(e) workers who are not employees but are employed under a contract for a fixed term;(f) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract. (4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place – (a) both workers are – (i) 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…..” (a) employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship; (b) employees employed under a contract for a fixed term that is not a contract of apprenticeship; (c) employees employed under a contract of apprenticeship; (d) workers who are neither employees nor employed under a contract for a fixed term; (e) workers who are not employees but are employed under a contract for a fixed term; (f) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract. (i) 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 No issue arises in the present case as to Regulation 2(4)(b). The threshold issue which does arise in relation to retained firefighters concerns the meaning of “type of contract” in Regulation 2(1), (2), (3)(f) and (4)(a)(i).[5]The decision of the Employment Tribunal Proceedings in the Employment Tribunal were in the form of a test case in which twelve retained fire-fighters proceeded against two employers, namely Kent and Medway Towns Fire Authority and Royal Berkshire Fire and Rescue Service. The Secretary of State for the Home Department was also a Respondent to the applications. Following a lengthy hearing the Employment Tribunal produced its decision on 22 July 2002. It stated that:
“(1) It finds and declares that the Applicant retained fire-fighters are employed under different types of contract within the meaning of regulation 2(3)…from the named comparator whole time firefighters and their claims are therefore unsuccessful and dismissed; further or alternatively (2) It finds and declares that the Applicant retained firefighters and the comparator whole time firefighters are not engaged in the same or broadly similar work within the meaning of regulation 2(4)(a)….and the claims on this further or alternative ground are unsuccessful and dismissed.”
The carefully constructed decision falls into two main parts. Paragraphs 7 to 73 are concerned with “the similarities and/or differences in the actual day to day work and actual job functions as between the retained firefighters and the whole-time fire-fighters on the basis of the evidence” The part from paragraph 74 then takes the form of an analysis of the contractual terms and conditions. Finally, there are set out the conclusions on the issues which arise on this appeal.[6]The decision of the Employment Appeal Tribunal The Appellants appealed to the Employment Appeal Tribunal (His Honour Judge Birtles, Mrs. C Baelz and Ms. B Switzer). The EAT handed down its judgment on 7 August 2003 and promulgated a revised version on 18 August 2003. It dismissed the appeals, stating: “There was clearly ample material upon which the Employment Tribunal could find that the retained firefighters and full-time firefighters were employed under different types of contract of employment and that it was reasonable for the employer to treat them differently” (paragraph 40) It further rejected grounds of appeal to the effect that the decision of the Employment Tribunal was flawed on the basis that it had taken irrelevant factors into account or had not taken into account or given sufficient weight to relevant factors or was perverse. This aspect of the appeal had related to the issue of “the same or broadly similar work” within the meaning of regulation 2(4)(a)(2).[7]The grounds of appeal to the Court of Appeal The Appellants’ notice propounded three grounds of appeal in the following terms:
“Ground 1: The EAT should have concluded that the Appellants were employed under the same type of contract as full-time firefighters as required by Regulation 2(3). The construction adopted by the EAT gives no proper force to the word ‘other’ in ‘any other description of worker’ in regulation 2(3). Ground 2: The EAT should have held that the Tribunal took the wrong approach in determining whether the Appellants were ‘engaged in the same or broadly similar work’ as full-time firefighters as required by regulation 2(4). The Tribunal should have concentrated, but did not, upon the issue whether the work done was similar or broadly similar and concluded that this task required the identification of a principal or core of similarity in job function. If this approach had been adopted then the Appellants would necessarily have succeeded because firefighting is the central role of all operational fire fighters. Ground 3: The EAT should have held that the Tribunal’s decision as to facts was wrong in law because the tribunal had taken into account matters which were irrelevant in performing a balancing exercise.”
The appeal was presented to us by Mr. Langstaff QC under two headings and the form of this judgment will now reflect that.[8]Issue 1:
“different types of contract”: the construction issue The central issue in a case such as this is whether a full-time worker is a “comparable full-time worker” within the meaning of Regulation 2(4). It is a prerequisite of comparability that the full-time worker and the part-time worker with whom he is being compared are “employed by the same employer under the same type of contract”. (Regulation 2(4)(a)(i)). Regulation 2(3) lists employees and workers who are to be regarded as being employed under different types of contract. Before the Employment Tribunal, the case for the Appellants was that both they and the full-time firefighters fell within the same category in Regulation 2(3), namely “(a) employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship”
It was common ground that neither group came within Regulation 2(3) (b),(c),(d), or (e). The case for the Respondents was that, whereas full-time firefighters fall fairly and squarely within (a), retained firefighters are employed under a different type of contract, namely “(f) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract”.[9]In its survey of the day–to–day work and job functions of full-time and retained firefighters and its analysis of their respective contractual terms and conditions, the Employment Tribunal found “many differences” and “many special features of the working patterns”. As a result it concluded that the retained firefighters are employed under a different type of contract. They fall within (f) because it was reasonable for the Respondents to treat them differently on the ground that they have a different type of contract. Retained firefighters are “a very special, anomalous, atypical and possibly unique group of employees”. Accordingly, as the two groups are not employed under the same type of contract, the retained firefighters are not entitled to compare themselves with their full-time colleagues.[10]The EAT agreed with this conclusion. It added that the presence of the criterion of reasonableness in (f) shows that its purpose “is to remove a group of workers from paragraphs (a)–(e) where it is reasonable to treat them differently from other workers”.[11]We have received a number of sophisticated and intricate submissions about Regulation 2(3)(f) from Mr. Langstaff and, on behalf of the Secretary of State, from Mr. Paines QC (whose submissions on this aspect of the appeal were substantially adopted by Mr. Bowers QC on behalf of the employer Respondents). In my judgment, the problem is not as complex as some of these submissions suggest. I have come to the contrary conclusion to that reached by the Employment Tribunal and the EAT. I have done so for the following reasons.[12]First, it is plain that the categories (a) to (f) are mutually exclusive. They are specifically stated to be regarded as employments “under different types of contract”. Secondly, the fact that (f) refers to any “other” description of worker must mean that it is confined to descriptions of workers who do not fall within any of (a) to (e). On the face of it, retained firefighters are employed under contracts which are neither for a fixed term nor contract of apprenticeship and which therefore fall within (a). Thirdly, to enable an employer to remove an employee from one of (a) to (e) because it is reasonable to treat him differently on the ground that alleged comparators have a different type of contract would severely limit the scope of the protection provided by the Regulations. It is always open to an employer to justify less favourable treatment on objective grounds under Regulation 5(2)(b) once the threshold tests of the same type of contract and engagement in the same or broadly similar work have been satisfied. It is neither necessary nor desirable to bring forward an objective test based on reasonableness to enable an employer to remove an employee who would otherwise fall into one of (a) to (e). To do so would unduly complicate eligibility and would run counter to the purpose of the legislation. Fourthly, such an approach forms no part of the Directive which gave rise to the Regulations. Fifthly, Regulation 2(3)(f) is not without a purpose if my construction of it is correct. Rather than providing a mechanism to enable an employee to be removed from one of (a) to (e), its purpose is to provide a residual category of “other” descriptions of worker who, for whatever reason, fall outside categories (a) to (e). Such workers can be treated differently but only on the ground that they have a different type of contract. In the course of submissions there was some debate as to who might fall into this residual category and rival submissions were made about, for example, home workers, project workers who are employed for the indeterminate duration of a project, temporary workers, seasonal workers, casual workers, seconded workers, quasi-apprentices and agency workers. I am prepared to accept that in most specific cases workers of such descriptions would take their places somewhere in categories (a) to (e). Nevertheless categories and borderlines are notoriously elusive in employment law (see Montgomery v. Johnson Underwood Ltd [2001] EWCA Civ 318F, paras 42-43) and it is consistent with a legislative intention in the field of employment protection to provide a residual category, whether with a view to inclusion in or exclusion from the protection. Sixthly, there is force in Mr. Langstaff’s submission that categories (a) to (e) are defined by reference to status (employee, worker who is not an employee, apprentice) and tenure (open-ended, fixed–term, duration of apprenticeship), such that it would be surprising if, in relation to (f), the draftsman had intended to widen the criteria of types of contract to embrace any reasonable differences in treatment.[13]For all these reasons I consider that the Employment Tribunal and the EAT were wrong to place the retained firefighters in category (f). They properly belong in category (a) and are therefore employed under the same type of contract of employment - that is neither for a fixed term nor a contract of apprenticeship – as their full-time colleagues. That therefore leads to the second issue: are the two groups engaged in the same or similar work? (Before turning to that issue I add as a footnote that Regulation 2(3) has now been amended by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 with the result that fixed term contracts have now been removed and provided for in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. What had been Regulation 2(3)(f) in the original 2000 Regulations is now Regulation 2(3)(d) in the second 2000 Regulations in relation to part-time workers).[14]Issue 2: the same or broadly similar work If full-time and retained firefighters are employed “under the same type of contract”, the next question is whether they are “engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience” (Regulation 2(4)(a)). The conclusion and reasoning of the Employment Tribunal is set out in the following passages (paragraphs 152-154):
“In making our conclusion as to whether the retained firefighters are rightly to be held as ‘engaged in the same broadly similar work’ we would have regard again to many of our main conclusions of fact about the particular methods of working of the retained firefighter service and to the conclusions of fact which we have reached about the way the whole operation has been geared to focus the working duties of the retained firefighter substantially on the emergency call out firefighting role. That central firefighting role was not in dispute before us as being the central and most important job function of the retained firefighter and being certainly a major part of the job role of the whole time firefighter. We have accepted….however that there are measurable additional functions which are carried out by the whole time firefighter….and on that ground alone we would find that it is a fuller wider job than that of the retained firefighter. Additionally we find that because of entry standards, probationary standards and ongoing training in the main areas we have set out…., again there are material differences in the ‘level of qualification and skills’ between the retained firefighter and the whole time comparator. Whilst we were not called upon to make the comparison there is obviously simply no comparison between retained ranks above Station Officer since promotion is not permitted….above that level. We exclude from this part of our assessment the question of ‘experience’ because we fully take on board and accept….that retained firefighters, particularly those who put in a large number of part-time hours, can develop an impressive level of experience. Putting together, however, the fuller wider role and the higher level of qualification and skills which we find to be the inevitable inference from the evidence before us, our conclusion is that were we called upon to consider the case under Regulation 2(4) the retained firefighter would not establish comparability with his full-time counterpart under section 2(4)(a)(ii).”
The EAT found no legal error in the conclusion and reasoning of the Employment Tribunal.[15]In advancing the grounds of appeal in his skeleton argument and in his oral submissions, Mr. Langstaff referred to both misdirection and perversity. An overview of the way in which he puts the case is as follows.(1) The core role of all firefighters, whether full-time or retained, is to fight fires. This must not be lost sight of in the comparison.(2) The Employment Tribunal erred by, for example, taking into account differences in the process of recruitment to the job and in promotion from the job which have no relevance to the work done in the job.(3) It accorded significant relevance to qualifications, skills and experience in an inappropriate way.(4) It failed to consider the differential job descriptions.(5) One way or another, it “failed to see the wood for the trees”.[16]The use of this metaphor in comparability cases goes back to the judgment of Kilner Brown J in Dorothy Perkins Ltd v. Dance [1977] IRLR 226 which was concerned with similar provisions in the Equal Pay Act 1970. Mr. Langstaff seeks to rely on these passages (at pp 6-8):
“Having then identified the parties, having then acquainted themselves with the nature of the contractual employment, the next thing that has to be done is to look at the position in very broad general terms. The old saying that it is sometimes difficult to see the wood because of the trees is particularly applicable in this type of investigation……look at the wood….if it sees one tree which is outstandingly different from the rest….see whether or not….[they]….are doing something which may be significantly different.”
Mr. Langstaff observes that whereas the Employment Tribunal found the firefighting role to be “the central and most important job function of the retained firefighter”, it was no more than “a major part of the job role of the whole time firefighter”. He submits that it was perverse to draw such a distinction. He refers to the undisputed evidence of Mr. Baars, Deputy Chief Fire Officer for Berkshire, which was recorded in the notebook of junior counsel as follows (its accuracy not being disputed):
“In terms of the core business of firefighting, retained firefighters and whole time firefighters do the same job. There are core competencies and additional competencies. The opportunity for retained firefighters to acquire additional competencies is severely limited.”
Mr. Langstaff then seeks to bring into the picture a passage from the judgment of Burton J in R v. West Yorkshire Fire and Civil Defence Authority ex parte McCalman (unreported, 4 May 1999, transcript p 25A) to the effect that “their [i.e. whole time firefighter’s] ‘principal duty’ or….core obligation had been firefighting.”[17]It is not necessary to rehearse in this judgment the very detailed findings of the Employment Tribunal. It sat for ten days to hear the case and the members later met for a further five days in chambers to deliberate about their decision. Mr. Langstaff’s complaint is not about particular findings of fact. It is about the approach of the Tribunal – what it took into account and what it did not – and whether its overall conclusion was perverse.[18]Having criticised the Employment Tribunal for failing at the outset to identify the core duty of both full-time and retained firefighters to be fighting fires and for failing to find their respective job descriptions to be broadly similar, Mr. Langstaff submits that the Employment Tribunal ought not to have accorded relevance to differences in recruitment procedures because “the same or broadly similar work” is concerned with what is done in the course of employment and not with how one is appointed to do it. Similarly it erred by taking promotion into account because the correct comparison is between employees who currently do the same job, not with expectations of when one may cease to do it by reason of promotion. He concedes that qualifications, skills and experience may be relevant – indeed, Regulation 2(4)(a)(ii) says as much – but submits that their relevance in the present case is not established because the differences do not change the work of firefighting done by full-time firefighters into something different from that done by retained firefighters. The differences in qualifications, skills and experience relate more to the “non-occurrence” duties than to the core obligation of fighting fires.[19]Notwithstanding the skill with which they were made, I do not accept these submissions. For one thing, I do not consider that the Regulations demand the identification of core obligations as the first stage of the inquiry. On the contrary, they leave to the Employment Tribunal how it goes about deciding whether two groups are engaged in the same or broadly similar work. To speak of “core obligations” can be misleading when one group performs a single function and the other performs several.[20]More importantly, Mr. Langstaff’s submissions seem to me to misunderstand the reasoning of the Employment Tribunal. It was entitled to find that, in addition to the fighting of fires and responding to other emergencies, there are “measurable additional job functions” carried out by full-time but not retained firefighters. It is those functions, which include educational, preventive and administrative tasks (such as the issuing of fire certificates) which substantially account for the differences in qualifications and skills. Of course, the full-time firefighter has the working time for all these things. Fires and other emergencies are not so numerous as to take up all his working time, whereas typically the retained firefighter is called upon as a response to fires and other emergencies. In my judgment, having found “measurable additional functions”, the Employment Tribunal was entitled to conclude “on that ground alone” that the full-time firefighter has a “fuller wider job” than the retained firefighter. It is plain from the words “on that ground alone” that the Employment Tribunal reached its decision that the two groups are not engaged in the same or broadly similar work even before account was taken of such matters as qualifications and skills. Differences in relation to entry standards, probationary standards, probationary training and subsequent training were “additional” matters which militated towards the same conclusion.[21]All these were matters which I consider the Employment Tribunal was entitled to take into account when considering “the same or broadly similar work”. In the same way, it was entitled to consider differences in recruitment procedures and promotion prospects. It is a fact that full-time firefighters are recruited to do a job with “measurable additional functions” and they are overwhelmingly the recruitment pool for promotion to the higher grades.[22]To the extent that Mr. Langstaff seeks to argue perversity, he faces obvious difficulties. The approach required of the EAT was most recently reiterated by Mummery LJ in Yeboah v. Crofton [2002] EWCA Civ 794 at para 93:
“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal, it must proceed with ‘great care’: British Telecommunications PLC v. Sheridan [1990] 1RLR 27, at paragraph 34.”
Applying that test, the EAT was plainly right to conclude that the Employment Tribunal was entitled to conclude as it did on the issue of “the same or broadly similar work”. It is incumbent on this Court, too, to focus on the decision of the Employment Tribunal (Yeboah v. Crofton, para 11). If it conducted the proceedings and decided the point in accordance with the law, no question of law arises for correction by this Court, even if it concludes that it might have decided the case differently (ibid).

Conclusion

[23]It follows that, although I consider that the Employment Tribunal and the EAT erred on the first issue, I am satisfied that they did not on the second issue, by reference to the approach, to the matters taken or not taken into account, or to perversity. That I would allow the appeal on the first issue only may therefore present the Appellants with something of a pyrrhic victory but it may have happier consequences for other part-time workers in other cases. In the circumstances a cross-appeal on the issue of less favourable treatment under Regulation 5 does not arise.

Lord Justice Longmore:

[24]I agree with my Lord that these appeals should be dismissed but since we are differing from both the Employment Tribunal and the Employment Appeal Tribunal on the construction of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (“the Regulations”) I will put into my own words the reasons for my agreement on that question of construction.[25]The Regulations were intended to implement the EU Part-time Work Directive, Directive 97/81/EC. Regulation 5 is the operative Regulation and provides that a part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker as regards the terms of his contract. Regulation 2 contains the relevant definitions; sub-clauses (1) and (2) define full-time and part-time workers by reference to the employer’s custom and practice in relation to workers employed by him “under the same type of contract”; sub-clause (4) provides that a full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place, both workers are employed by the same employer “under the same type of contract”.[26]There is no definition of the phrase “under the same type of contract” but sub-clause (3) of Regulation 2 (in words which appear to have no counterpart in the Directive) gives categories of persons who are to be regarded as employed under different types of contract in the following words:- “(3) For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract –(a) employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship;(b) employees employed under a contract for a fixed term that is not a contract of apprenticeship;(c) employees employed under a contract of apprenticeship;(d) workers who are neither employees nor employed under a contract for a fixed term;(e) workers who are not employees but are employed under a contract for a fixed term;(f) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.” The argument here concerned sub-clause (3) (f). It is common ground that full-time firemen fall within sub-clause 3 (a) and that, but for sub-clause (3) (f), part-time or “retained” firemen would also fall within sub-clause (3) (a) since neither full-time nor part-time firemen are employed under fixed-term contracts or contracts of apprenticeship. The respondent employers and the Secretary of State, however, contended that retained firemen are workers whom it is reasonable for the employers to treat differently from their full-time firemen on the ground that the full-time firemen have a different type of contract. The retained firemen thus come within sub-clause (3) (f) and are therefore not employed under the same type of contract for the purpose of sub-clause (4) of Regulation 2. (a) employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship; (b) employees employed under a contract for a fixed term that is not a contract of apprenticeship; (c) employees employed under a contract of apprenticeship; (d) workers who are neither employees nor employed under a contract for a fixed term; (e) workers who are not employees but are employed under a contract for a fixed term; (f) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.”[27]The Employment Tribunal accepted this contention, largely as a result of(a) the obligations imposed on the retained firemen in the form of call-outs to occurrences whenever called, attendance for training purposes and attendance for drill for 2 to 3 hours per week;(b) the different types of payment or fees which the retained fireman is entitled to receive and(c) differences in work actually done (see paragraphs 78–79 and 142 of their decision). The Employment Appeal Tribunal agreed and helpfully spelled out in paragraphs 39 (iv) and (v) the precise matters which the Employment Tribunal must have had in mind.[28]There are, to my mind, serious difficulties about accepting this construction of Regulation 2 (3), because it effectively permits the employer to decide for himself who is and is not to be regarded as a comparable full-time worker. If an employer can “reasonably” treat part-time workers differently from full-time workers and say that the ground on which he is so doing is that part-time workers have a different type of contract from full-time workers, there will be little or no scope for an Employment Tribunal to assess for itself, as it is obliged to do under Regulation 5, whether the employer is treating the part-time worker less favourably than a comparable full-time worker as regards “the terms of his contract”. All the more will this be the case if it is “the terms of his contract” on which the employer is entitled to rely for the purpose of asserting that it is reasonable to treat his part-time workers differently for the purposes of sub-clause 2 (3) (f).[29]Mr Paines QC for the Secretary of State, who undertook the burden of the argument on this issue, submitted that, unless the Regulation had the construction for which he was contending, it was impossible to give it a sensible meaning. I do not accept this. As Mr Langstaff QC for the retained firemen submitted, sub-clause 3 was intended to specify different types of contract in, at any rate, primarily an objective sense. It is, however, notoriously difficult for any draftsman to ensure that his categories are exhaustive particularly when the concept of a contract of service is not only elusive in itself but can continue to give rise to peculiar difficulties of definition (see eg Montgomery v Johnson Underwood [2001] ICR 819 in relation to agency workers). The ingenuity of employers (or their lawyers) may well be such that it is possible to draft a particular kind of contractual arrangement for part-time workers (outside categories (a) – (e)) which does, in fact, constitute a different type of contract from that given to full-time workers (as opposed to one that merely had different terms). It would then be a question whether it was reasonable for an employer to have entered into such an arrangement. It is, in my view, this situation that is envisaged by sub-clause (3) (f).[30]It may be said that this is a somewhat strained construction of the Regulation. It is, however, a preferable construction to one that would effectively entitle the employer to decide for himself whether or not the Regulations were applicable to his part-time workers. Since the wording of Regulation 2(3) has no counterpart in the original Directive, it would be particularly unfortunate if the courts adopted a construction of sub-clause (f) which made it difficult for the Directive to have its intended effect.[31]I have nothing to add to what my Lord has said on issue 2.

Lord Justice Jonathan Parker:

[32]I agree with both judgments.

Order

Appeal dismissed; Appellants do pay two thirds of Respondents costs of the appeal; application for permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)