MR B R MATTHEWS & OTHERS v (1) KENT & MEDWAY TOWNS FIRE AUTHORITY (2) ROYAL BERKSHIRE FIRE & RESCUE SERVICE (3) THE SECRETARY OF STATE FOR THE HOME DEPT [2003] UKEAT 0968_02_0708

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0968_02_0708Case No Appeal No. EAT/0968/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B R MATTHEWS & OTHERSAPPELLANT(1) KENT & MEDWAY TOWNS FIRE AUTHORITY (2) ROYAL BERKSHIRE FIRE & RESCUE SERVICE (3) THE SECRETARY OF STATE FOR THE HOME DEPTRESPONDENTS
Before
His Honour Judge Birtles Mrs C Baelz Ms B SwitzerDate 7 August 2003
[1]APPEARANCES For the Appellant MR BRIAN LANGSTAFF QC (of Her Majesty's Counsel) MR MARTIN SEAWARD (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the First & Second Respondents For the Third Respondent MR JOHN BOWERS QC (of Her Majesty's Counsel) MR NICHOLAS CHRONIAS (Solicitor) Instructed by: Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN MR NICHOLAS PAINES QC (of Her Majesty's Counsel) MR RAYMOND HILL (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the decision of an Employment Tribunal sitting at London (South) in November 2001, February, April and May 2002. The Chairman was Mr D N Milton and the members were Mrs P M Woods and Mr A Jinkinson.[2]The Employment Tribunal unanimously made the following decision:(i) "…the Applicant retained fire-fighters are employed under different types of contract within the meaning of regulation 2 (3), Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 from the named comparator whole-time fire-fighters and their claims are unsuccessful and dismissed; further or alternatively(ii) (ii) …that the Applicant retained fire-fighters and the comparator whole-time fire-fighters are not engaged in the same or broadly similar work within the meaning of regulation 2 (4) (a) of the Regulations and the claims on this further or alternative ground are unsuccessful and dismissed." Background[3]The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("PTWR") came into force on 1 July 2000. Thereafter some 12,000 "retained fire fighters" members of the Fire Brigade's Union ("FBU") presented Originating Applications in different regions throughout the country alleging discrimination in comparison with "whole-time fire fighters."[4]On 7 June-2001 His Honour Judge John Prophet, then President of the Employment Tribunals (England and Wales) gave directions for the agreed questions for Employment Tribunal Hearings. Those directions are set out in full in EAT bundle 1 pages 1-102. Having set out the background Judge Prophet set out the questions. They were these:(i) whether or not retained fire fighters are employed under the same type of contract as whole-time fire fighters for the purposes of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations") and, in particular:• whether whole-time and retained fire fighters are retained under different types of contracts because whole-time fire fighters are employees and it is not admitted that retained fire fighters are employees;• whether it is reasonable to treat retained and whole-time fire fighters as having different types of contract;• if so, are retained and whole-time fire fighters engaged in the same or broadly similar work(ii) if whole-time and retained fire fighters are engaged under the same type of contract, are there nevertheless objectively justifiable reasons for:• excluding retained fire fighters from the Fireman's Pension Scheme ;• operating different terms and conditions for retained and whole-time fire fighters.[5]The Tribunal in this case considered itself bound by those directions and followed them. The hearing lasted ten days and the Employment Tribunal then reached its decision after five days of discussion in chambers. The reserved decision runs to 36 closely-typed pages and is in conventional form. It sets out the facts as found by it under a series of headings (paragraphs 7-120), turns to the applicable law (paragraphs 121-123), refers to the President's directions (paragraph 124-125) and then considers the issues which it is asked to decide by reference to the written and oral submissions of Counsel (paragraphs 127-165). Finally the Employment Tribunal make some comments about the operation of the present terms and conditions of part-time fire fighters (paragraphs 166-169). We do not take the view that those remarks are part of the Employment Tribunal's decision. They are in the Employment Tribunal's own words "our own penny's worth of comment about our impressions of the evidence before us.": decision paragraph 167.[6]We do not set out the detail of this extensive and far reaching decision. Insofar as matters of fact are concerned, we are bound by the findings of fact made by the Employment Tribunal and we adopt them as part of this judgment. Before turning to the grounds of appeal we join with the Employment Tribunal in paying tribute to the essential work carried out by the retained fire fighters and the obvious fact that they perform a very valuable and vital role for the country as a whole. The Grounds of Appeal and Cross-Appeal[7]The Appellant was represented by Mr Brian Langstaff QC and Mr Martin Seaward. The First and Second Respondents were represented by Mr John Bowers QC and Mr Nicholas Chronias (Solicitor). The Third Respondent was represented by Mr Nicholas Paines QC and Mr Raymond Hill. We are grateful to all Counsel and Mr Chronias for their very helpful Skeleton Arguments and the oral submissions made to us over three days.[8]Effectively, the Notice of Appeal and the cross-appeals put in issue all of the matters decided by the Employment Tribunal. It seems to us sensible that we deal with each ground of appeal and cross-appeal in turn. We do so in the order set out in the arguments before us.[9]Before turning to the grounds of appeal it is useful for us to set out some background. Background[10]The Appellants are all "retained fire fighters". They are test Applicants chosen from a substantial group of retained fire fighters, who have brought claims against fire authorities across the country. All the test Applicants were employed by either the First Respondent, the Kent & Medway Towns Fire Authority, or the Second Respondent, the Royal Berkshire Fire & Rescue Authority. The Secretary of State was a party to these proceedings in his capacity as maker and administrator of the Fireman's Pension Scheme ("the Scheme"), which is contained in the Fireman's Pension Scheme Order 1992 (SI 1992/129). Ministerial responsibility for the Fire Service has since been transferred to the Secretary of State for Transport, Local Government and the Regions and latterly the Office of the Deputy Prime Minister and First Secretary of State, but this does not affect these proceedings.[11]The Appellants claimed before the Employment Tribunal that they were less favourably treated than "whole-time" fire fighters, contrary to the PTWR . In particular, they claimed that they were less favourably treated by all three Respondents in that they were denied access to the Scheme and by the First and Second Respondents in being treated less favourably with regard to the arrangements for sick pay and increased pay for additional responsibilities.[12]In summary, the issues before the Employment Tribunal were:(i) whether the Appellants are employed under the "same type of contract" as their comparators, who were whole-time fire fighters. This is principally relevant to whether the Appellants could complain under Regulation 5 PTWR of less favourable treatment. It was common ground that the comparators were employed under "a contract that is neither for a fixed term nor a contract of apprenticeship." (reg 2 (3) (a) PTWR );(ii) whether the Appellants were "any other description of worker that it is reasonable for the employer to treat differently on the ground that workers of that description have a different type of contract" (reg 2 (3) (f) PTWR );(iii) whether the Appellants and the comparators were engaged in the same or broadly similar work having regard, to their level of qualification, skills and experience (reg 2 (4) (a) PTWR );(iv) whether the Appellants had been subjected to less favourable treatment than their comparators, applying the pro rata principle, unless it was inappropriate (reg 5 (2) (b) PTWR );(v) whether that treatment was on the grounds that the Appellants were part-time workers (reg 5 (2) (a) PTWR );(vi) whether that treatment was objectively justified (reg 5 (2) (b) PTWR ). The Scheme[13]Under regulation A3 (1) of the Fireman's Pension Scheme Order 1992 the Scheme applies to "regular fire fighters". A regular fire fighter is defined in Schedule 1 as being (since 29.2.1992):
"a whole-time member of a brigade appointed on terms under which he is or may be required to engage in fire-fighting whose appointment is not a temporary one."
[14]The Scheme is a final salary scheme contracted out of SERPS in which the pension benefits are determined by the members' final salary and reckonable service. The normal retirement age for the rank of Station Officer or below is 55, although members can retire from age 50 on completion of 25 years service.[15]Membership of the Scheme is voluntary; employees who do not opt out of the Scheme pay a contribution of 1p a week less than 11% of salary. The employer contributes the balance of the cost.[16]On retirement, regular fire fighters receive a pension equal to 1/60 th of Average Pensionable Pay in the best of the previous three years before exit for each year of actual service, plus a further 1/60 th of Final Pensionable Pay for each year of service in excess of 20 years.[17]Although retained fire fighters are not entitled to retirement pensions under the Scheme, they are entitled to ill-health and injury awards without contribution. The PTWR[18]Under regulation 5 PTWR one person can claim parity with another if:(i) the claimant is a part-time worker;(ii) the comparator is a comparable full-time worker;(iii) the less favourable treatment is on the grounds that the claimant is a part-time worker;(iv) the treatment is not justified on objective grounds.[19]Under Regulation 2 (2) PTWR a person is a part-time worker if he is not identifiable as a full-time worker, "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 ." The Appellants claimed in the Employment Tribunal that they were part-time workers in comparison with whole-time fire fighters. That comparison is only valid under Regulation 2 (2) PTWR if the whole-time fire fighters were employed under the same type of contract.[20]Whether someone is a comparable full-time worker in relation to a part-time worker is governed by Regulation 2 (4) PTWR ; this imposes three conditions, all of which have to be fulfilled:(i) the full-time worker has to be employed by the same employer under the same type of contract;(ii) both workers have to be engaged in the same or broadly similar work , having regard, where relevant, to qualification, skills and experience;(iii) both workers have to be based at the same establishment (unless there is no full-time worker based at the same establishment as the part-time worker, but there is one based at another establishment). There was no issue about point (iii) before the Employment Tribunal in the present case.[21]Regulation 2 (3) PTWR is relevant for determining whether two workers are employed under the "same type of contract." At the time of the hearing before the Employment Tribunal Regulation 2 (3) listed six different types of contract for the purposes of the Regulations. That list has since been changed to four by the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (SI 2002/2034) as from 1 October 2002. We have not had regard to this amendment in construing the original Regulations. Under the original Regulations a person is not a "comparable full-time worker" in relation to another person unless both of them fall in the same category in Regulation 2 (3). The six categories contained in Regulation 2 (3) are as follows:(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 First Ground of Appeal: Different Types of Contract[22]The first category (Regulation 2 (3) (a) PTWR ) is "employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship". It was common ground before the Employment Tribunal that whole-time fire fighters are employed under that type of contract. As regards retained fire fighters, the issue was whether they fell (as the Respondents submitted and the Employment Tribunal found) under Regulation 2 (3) (f) as well.[23]In his very able and cogent submissions, Mr Langstaff argued that the phrase "different types of contract" in Regulations 2 (3) did not depend upon:(a) the nature of the work done by the worker; or(b) the fact that one worker is part-time and the other is full-time; or(c) any differences in the terms and conditions of either worker's contract.[24]He submitted that there were only two relevant factors in determining types of contract. These were status and tenure of employment. He further submitted that in giving a meaning to Regulation 2 (3) (f) emphasis should be placed on the use of the word "other" in the phrase "any other description of worker". He said that this:(a) implies that each of the categories in (a)–(e) is a "description of worker" for the purposes of the Regulations;(b) suggests that the eiusdem generis approach to construction is to be taken; and(c) permits a distinction to be made between those who fall in (f) and those who fall within (a)–(e).[25]Mr Langstaff submitted that there were two logical possibilities as to what was in the mind of the draftsmen as to the exclusiveness of the categories in (a) through to (e). Either: (i) categories (a) to (e) covered every permutation as to tenure; or (ii) they did not, such that the need was anticipated for a residual category as to tenure (or possibly otherwise. He said this is open to the objection that it leaves no touchstone by which "type" can be given a clear meaning).[26]As to his first submission, Mr Langstaff argued that the different categories from Regulation 2 (3) (a) are mutually exclusive. Regulation 2 (3) (f) recognises that even this degree of exclusivity may not provide a sufficient distinction, and that it may not always be appropriate to permit workers within the same category (i.e. any of those from (a) to (e)) to be compared one against the other. He gave a number of examples in his Skeleton Argument. It is not necessary to repeat them here.[27]Mr Langstaff also argued that it was possible to postulate a number of other anomalies, which the broad categorisation from (a) to (e) would otherwise give rise to, if there were no "escape clause" which was what Regulation 2 (3) (f) was. That escape clause enables the employer to claim that there is a distinction as to the type of contract (in relation to tenure/duration) for the purpose of avoiding a comparison being made between other workers in his employment who would otherwise fall within the same class (a) to (e).[28]Mr Langstaff accepted that if the difference in the tenure of the worker makes it reasonable for the employer to treat such a part-timer differently from a full-timer otherwise within the same category (a) to (e) then the employer may distinguish between them and treat them differently. But he submitted that the distinguishing feature which differentiates a contract under Regulation 2 (3) (f) from any other contract can only be a difference as to tenure since neither the nature of the work, nor the terms and conditions of the contract, nor the difference between full or part-time, nor status, can be taken into account at this stage of the decision-making process.[29]Mr Langstaff argued that the Employment Tribunal's approach to the assessment, whether it was reasonable for the employers to treat whole-time fire fighters differently from retained fire fighters on the basis that they had different types of contract, erred in that they failed to limit their consideration of "groups of workers who may have a different type of contract" to those working under types of contract of different tenure.[30]He sought to rely on the eiusdem generis principle by favouring an interpretation of Regulation 2 (3) (f) which produced a sixth category of worker, distinguishable by tenure / term / duration so as (in this case) to facilitate appropriate, and avoid inappropriate, comparison: RvIAT ex parte Shah [1999] 2 AC 629 at 640-5 per Lord Steyn and 656 and 658 per Lord Hope.[31]In the alternative, Mr Langstaff argued that Regulation 2 (3) (f) is to provide for a residual category of employees who do not fit naturally or easily within any of these previous descriptions as to term. In his Skeleton Argument he gave a number of examples. It is not necessary to repeat them here. Thus, he said, that if the difference in the tenure of the contract makes it reasonable for the employer to treat such a part-timer differently from a full-timer, otherwise within the same category (a) to (e), then the employer may distinguish between them and treat them differently. The distinguishing feature which differentiates a contract under Regulation 2 (3) (f) from any other contract can only be a difference as to tenure since neither the nature of the work, nor the terms and conditions of the contract, nor the difference between full or part-time, nor status, can be taken into account at this stage of the decision-making process.[32]Mr Bowers argued that the Employment Tribunal fully considered and properly directed itself as to the meaning of "different type of contract" under Regulation 2 (3) (f) by considering in detail the nature of the contract of respectively whole-time and retained fire fighters (and making numerous findings of fact about them at paragraph 7 to 120 of the Decision). The Tribunal drew a sharp distinction between facts/evidence indicating contractual terms and facts/ evidence as to actual work activities. He argued that the purpose of Regulation 2 (3) (f) is not to apply only to persons who do not fall within the words of (a) to (e); rather, it is to remove a group of workers from (a) to (e) where it is reasonable to treat them as a separate category; that is likely to be a relatively narrow group of workers but does include the unusual group of retained fire fighters. There is no policy reason for restricting the meaning of the words of Regulation 2 (3) (f) in the way contended for by the Appellants.[33]Mr Paines submitted that the Appellants' interpretation gives Regulation 2 (3) (f) no scope at all. Regulation 1 (2) sub-divides workers into two categories: those who have a contract of employment and those who have some other contract to perform work or services personally. If a person does not have one or other of those types of contract, then he/she is not a "worker" within the scope of the regulations at all. The five sub-paragraphs (a) to (e) of Regulation 2 (3) then first categorise workers into three groups:(i) employees;(ii) workers who are not employees;(iii) apprentices; and and the second sub-divides workers other than apprentices between those whose contract is for a fixed-term and those whose contract is not for a fixed-term.[34]If one considers employees, an employee will either be employed under a contract of apprenticeship or he/she will not. If he/she is employed under a contract of apprenticeship, then he/she will fall into category (c). If not, he/she will fall into category (a) or (b), both of which refer explicitly to a contract which is not a contract of apprenticeship. Employees other than apprentices will fall into category(a) if they are employed under a contract that is not for a fixed-term and into(b) if they are employed under a contract that is for a fixed-term. There can be no third category: either a contract is for a fixed-term or it is not.[35]Mr Paines analysed Mr Langstaff's examples of those which fell outside (a) to (e) and submitted that although there may be scope of debate about which category those examples fell into, they all fell within the literal wording of (a) to (e).[36]Mr Paines also disagreed with Mr Langstaff's alternative argument. He submitted that the Employment Tribunal did not misdirect itself as to the meaning of "type of contract" in Regulation 2 (3). Those falling within Regulation 2 (3) (f) were distinguished from those in the other categories in Regulation 2 (3) solely by reference to the "common legal characteristics" of the contracts in issue. There would, once again, be no-one covered by Regulation 2 (3) (f) because the other regulations at paragraphs (a)–(e) cover every variable of these characteristics. Regulation 2 (3) (f) contains no limitation on the criteria by which types of contract can be differentiated and only makes sense if the differentiation can be made by reference to the contractual working pattern of the workers.[37]Moreover, Mr Paines submitted that if contracts falling within Regulation 2 (3) (f) could only be distinguished from those under the other sub-paragraphs of Regulation 2 (3) by reference to their legal characteristics, there would be no reason for Regulation 2 (3) (f) to contain a criterion of reasonableness. The presence of this criterion shows that the purpose of Regulation 2 (3) (f) is to remove a group of workers from (a)–(e) where it is reasonable to treat them differently from other workers.[38]Mr Paines submitted that the Employment Tribunal did not misdirect itself in law as to the meaning of the word "type" in Regulation 2 (3) and was entitled in paragraphs 141 and 142 of its Decision to hold that the Appellants' variable hours contracts were a different type of contract to the full-time shift based contracts for full-time fire fighters. The Employment Appeal Tribunal Decision[39]We agree with the Respondents' submissions for the following reasons:(i) In our judgment the Employment Tribunal did not confuse the Appellants' contractual terms and conditions and their work activity. The Tribunal made it clear in paragraph 72 of its Decision that it had concentrated in paragraphs 7 to 73 on work activities and not what happened to be included in the contract. The Tribunal went on to analyse the Appellants' contractual terms separately in paragraphs 74 to 120 of its Decision. Moreover, the Tribunal considered separately whether the Appellants had a "different type of contract" and whether it was reasonable to treat them differently: decision paragraph 140. The reference at paragraph 142 of the Decision is clearly to the Tribunal's earlier discussion of the contractual terms. It made no error of law in noting that these gave rise to special features in the working pattern. We therefore reject Mr Langstaff's submission that terms and conditions per se are irrelevant in law in deciding what type of contract is involved in this case. The extent to which the terms and conditions of employment affect the issue is a question of fact in each case.(ii) We also reject Mr Langstaff's submission that in this case because whole-time and retained fire fighters are both correctly described as employees employed under a contract of employment that is neither for a fixed term nor a contract of apprenticeship they fall automatically and only under Regulation 2 (3) (a) and cannot fall under Regulation 2 (3) (f). The Tribunal rejected that submission at paragraphs 138 and 140 of its Decision on the grounds that the Appellants' interpretation would give Regulation 2 (3) (f) no scope at all. We agree with the Tribunal and Mr Paines' analysis of the structure of Regulation 2 (3). We do not think that any of the examples raised by Mr Langstaff in his written and oral submissions could fall outside Regulation 2 (3) (a)–(e). In our view, Mr Langstaff's narrow construction effectively means that Regulation 2 (3) (f) is redundant. We cannot accept that Parliament intended that result. Neither can we see any basis for the application of the eiusdem generis principle.(iii) In our judgment Regulation 2 (3) (f) contains no limitation on the criteria by which types of contract can be differentiated and only makes sense if the differentiation can be made by reference to the contractual working pattern of the workers (amongst other factors). We accept Mr Paines' submission that if contracts falling within Regulation 2 (3) (f) could only be distinguished from those under the other sub-paragraphs of Regulation 2 (3) by reference to their legal characteristics of tenure and duration, there would be no reason for Regulation 2 (3) (f) to contain the criterion of reasonableness. The presence of this criterion does show that the purpose of Regulation 2 (3) (f) is to remove a group of workers from paragraphs (a)–(e) where it is reasonable to treat them differently from other workers.(iv) Furthermore, as the Respondents point out, the Employment Tribunal found certain similarities and a larger number of differences between the work of retained and whole-time fire fighters. Those similarities include: (a) putting out fires: decision paragraphs 7 and 14; (b) physical fitness: decision paragraph 50. Differences included the following: (a) the proportion of work time attending fires: decision paragraphs 11-13; (b) variability of working patterns: decision paragraphs 15, 25, 28, 30, 31, 32 and 42; (c) fire safety work: decision paragraphs 16 and 20-22; (d) the recruitment pool: decision paragraph 43; (e) selection procedures: decision paragraphs 45-47, 49 and 51-53; (f) recruit training: decision paragraphs 56 and 58-59; (g) ongoing training: decision paragraphs 61, 65 and 67; (h) promotion: decision paragraphs 69-71;(v) Furthermore, the Employment Tribunal found a number of differences in the contractual terms of retained fire fighters, namely: (i) in the method of working required by the contract and in the types of payment for that work, which were "in no way a sham or device by the employer artificially to create a differential": decision paragraph 79-80. The Tribunal found that this reflected the need to put together an attractive package to recruit retained fire fighters: decision paragraph 80-82, the different types of duty which retained fire fighters perform and the fact that a retained fire fighter will normally have another job: decision paragraph 84. The Tribunal noted a number of "special" and unusual features of the pay structure of retained fire fighters as follows: (a) the set pay for regular attendance hours "is not actually for carrying out the main work which the Applicants argue is their central role" but for carrying out training: decision paragraph 91; (b) many call-out payments are made for the "vast number of in effect false alarms on non-effective call-outs": decision paragraph 95; (c) retained fire fighters may be paid for loss of earnings in another occupation as "in the majority of cases it is obvious that the retained fire fighters work is subsidiary to or additional to another job": decision paragraph 97; (ii) retained fire fighters receive bounty payments at five-yearly gaps after ten years' service. The Tribunal found that "…the payment" is a mixture of a bonus type of payment on the one hand and also has an element of "pension-type payment": decision paragraph 99; (iii) retained fire fighters do not have access to the Fireman's Pension Scheme . The Tribunal also indicated that on a straightforward, like for like term of comparison, the sick pay was less favourable, as it was restricted in most circumstances to "the normal retaining fee and up to four drill attendance fees in a given calendar year", whereas for whole-time fire fighters "the compensation is effectively full contractual earnings": decision paragraphs 115-116. Similarly, on a straightforward, like for like term of comparison, retained fire fighters also received less favourable pay for taking on additional responsibilities, i.e. acting up in a higher rank, extra payments for remaining on duty and payments for extra work: decision paragraphs 117-120.[40]There was clearly ample material upon which the Employment Tribunal could find that retained fire fighters and full-time fire fighters were employed under different types of contract of employment and that it was reasonable for the employer to treat them differently. The Second Ground of Appeal: The Same or Broadly Similar Work[41]Regulation 2 (4) provides as follows: (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…"[42]The Employment Tribunal found that the retained fire fighters did not do the same or broadly similar work to full-time fire fighters: decision paragraph 148-155. For the purposes of this exercise the Employment Tribunal made the assumption that the retained and whole-time fire fighters were "employed under the same type of contract" within the meaning of Regulation 2 (4) (a): decision paragraph 148. Furthermore, the Respondents conceded that the requirement of both groups to work at "the same establishment" as required by section 2 (4) (b) was satisfied in this case: decision paragraph 149.[43]The Tribunal were referred to and considered the decisions in Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607 ; Dorothy Perkins Ltd v Dance [1977] IRLR 226 and Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse [2000] ICR 1134. ("the Wiener case"): decision paragraph 151.[44]The Tribunal then said this: 152 "In reaching our conclusion as to whether the retained fire fighter Applicants are rightly to be held as "engaged in the same or 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 fire fighter 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 fire fighter substantially on the emergency call out fire fighting role. That central fire fighting role was not in dispute before us as being the central and most important job function of the retained fire fighter and being certainly a major part of the job for the whole-time fire fighter. We have accepted above however that there are measurable additional job functions which are carried out by the whole-time fire fighter (and in the main we accept Mr Bowers' submissions on these issues) and on that ground alone we would find that it is a fuller wider job than that of the retained fire fighter. 153 Additionally we find that because of entry standards, probationary standards, probationary training and ongoing training in the main areas which we have set out in foregoing paragraphs, again there are material differences in the "level of qualification and skills" between the retained fire fighter 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 (depending on the Region) above that level. We exclude from this part of our assessment the question of "experience" because we fully take on board and accept the Applicant's case that retained fire fighters, particularly those who put in a large number of part-time hours, can develop an impressive level of experience. 154 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 fire fighter would not establish comparability with his full-time counterpart under sub-section 2 (4) (a) (ii). 155 The decision of Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse [2000] ICR 1134 set out above we find was somewhat supportive of a view of the case which we had effectively reached before reading the detail of that decision. The decision concerned activities carried out over a considerable length of time which were the same namely psychotherapic work. The same psychotherapic work was carried out both by qualified doctors and graduate psychologists and trained psychotherapists. Parity was sought with the higher pay given to the qualified doctors. The head note of the decision is at page 1134 where in answer to the referred questions the Court of Justice of the European Communities held that although the two groups performed "seemingly identical activities" they drew on knowledge and skills acquired in very different disciplines and even though doctors and psychologists both in fact performed work of psychotherapy the former were qualified also to perform other tasks in a field which is not open to the latter and that in those circumstances the two groups could not be regarded as being in a "comparable situation". We draw from that decision support for what we direct ourselves is a long established proposition in an enquiry of this kind namely that a higher level of qualification which, further, is reflected in a higher level of skills and which, further, in fact is demonstrated by further activities which the complainant by lack of that level of qualification skill or training is not qualified to carry out and does not in fact carry out places the two workers into different non-comparable situations. If we were called upon therefore to reach a conclusion under this Regulation we would not accept the Applicant's case." [our emphasis][45]Mr Langstaff argued that the Employment Tribunal found that fire fighting was the central and most important job function of a retained fire fighter: decision paragraph 151, and also found that a full-time fire fighter fulfils effectively the same job function on the fire ground and at other incidents such as road or rail crashes and chemical spills or fires, from call-out to completion of incident reports: decision paragraphs 7-8, it went on to find that fire fighting was a major (but not the central) part of the job role of the full-time fire fighter: decision paragraph 152. Mr Langstaff contends that the Employment Tribunal, if it had properly directed itself, would have inferred that fire fighting was the core or principal or central duty of the full-time fire fighter in light of the evidence before the Tribunal and its primary findings of fact. Mr Langstaff submits that, by failing to recognise this, the Employment Tribunal failed to accord sufficient weight to the fact that retained fire fighters and full-time fire fighters did the same work on the fire ground. In our view, an appeal on this ground must inevitably fail because it is not a point of law to argue at the Employment Appeal Tribunal that the Employment Tribunal failed to accord sufficient weight to particular parts of the evidence. It is the Employment Tribunal which is the fact-finding body.[46]In the alternative, Mr Langstaff argued that the Employment Tribunal's conclusion was irrational and perverse. We remind ourselves of the recent strictures of the Court of Appeal in Yeboah v Crofton [2002] IRLR 634 to the effect that it is not for this Tribunal to comb through the evidence before the Employment Tribunal so as to make its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. A ground of appeal based on perversity ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision that no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached. We also remind ourselves that in this case the Employment Tribunal heard oral evidence from a large number of witnesses and reviewed approximately 2,500 pages of written evidence in the bundles over 10 days of hearing: decision paragraphs 2-3. The evidence enabled the Tribunal to form a detailed picture of the way in which the retained fire service operated in fact and also the peculiarities of their contractual arrangements. Many of the facts were not in dispute, the argument before the Tribunal largely centred on their significance: decision paragraph 5.[47]Mr Langstaff argued that the Employment Tribunal accorded too much weight to differences of degree, namely the greater amount of community fire safety work done by full-time fire fighters and the generally higher level of training qualifications and skill acquired by full-time fire fighters. He said these differences are "quantitive" and not "qualitative." Neither did the Employment Tribunal apply any, or any adequate, weighting mechanism between the similarities and differences in job function which it found. They weighted the significance of each criteria high, medium or low, but did not have enough evidence to undertake a proper job evaluation and neither could, nor did, develop an adequate mechanism to view the picture in the round.[48]Mr Langstaff further submitted that there were a number of factors which the Employment Tribunal took into account which were irrelevant. Thus the Tribunal erred in taking account of the following:(i) recruitment procedures;(ii) promotion;(iii) qualifications, skills or experience, unless the specific relevance of them making the work done into something different, in consequence of the deployment of those qualifications, skills or experiences was made out.(iv) the demand led nature of the job.[49]Mr Bowers argued that the Employment Tribunal correctly directed itself to the relevant authorities, i.e. Wiener and Dance , made many findings of fact and reached a conclusion that "there are measurable additional job functions which are carried out by the whole-time fire fighter": decision paragraph 152 and "there are a variety of ways in which the whole-time fire fighter has a much more specialised body of knowledge and experience which can be brought to bear in carrying out these duties than is available to and applied by retained fire fighters": decision paragraph 20.[50]Mr Bowers submitted that the broadly similar work test in the PTWR specifically has regard to the "qualification, skills and experience" of the workers involved and this approach is quite different to the more broad-brush approach in the Equal Pay Act 1970 . Mr Bowers invited us to consider each of the suggestions made by the Appellants and to find there was no error of law by the Tribunal. Moreover, he submitted, that the Employment Tribunal in this case was fully entitled to take account of the different qualifications, skills and experience of retained fire fighters and full-time fire fighters.[51]Mr Paines submitted that Regulation 2 (4) (a) (ii) does not require the Tribunal to identify a single "core" activity of retained fire fighters and whole-time fire fighters and determine whether it was the same in both cases. Neither the wording of the Regulation itself nor the authorities require this approach. He submitted that Regulation 2 (4) (a) (ii) is different from the "like work" provision in section 1 (4) of the Equal Pay Act 1970 and referred us again to Dorothy Perkins Ltd v Dance [1977] IRLR 226.[52]Mr Paines further submitted that it was a matter for the Tribunal to decide how much weight it placed on similarities between the work of retained and whole-time fire fighters on the fire ground. Similarly, it was a matter for the Tribunal to make an assessment of the importance of the relevant differences. It was open to the Tribunal to come to the conclusion that there were significant differences between the work of the two groups and that the retained fire fighters were not simply doing similar work to the whole-timers over a reduced number of hours.[53]Mr Paines argued there was no validity in the Appellant's argument that the Tribunal took into account differences in the contractual terms and conditions of whole-timers and retained fire fighters in assessing whether they did the same or broadly similar work. He referred to the Tribunal's conclusion at decision paragraph 72 that, in analysing paragraphs 7 to 73 the main factual differences between the work of whole-time and retained fire fighters, it had: 72 "…concentrated on what we find to be the actual working practices in the work place rather than what the employer may have for the sake of argument arbitrarily or capriciously included in the contract of employment."[54]The Tribunal went on to say that it had separated out its analysis of the main factual differences between the work of full-time and retained fire fighters from the contractual terms and conditions because: 74 "…when we come to record our final conclusions under the Regulations we believed that it was correct for us not as it were to be distracted by terms and conditions which may have evolved perhaps in a haphazard fashion and/or because of arbitrary decisions by Politicians or Local Fire Authorities and perhaps because of a desire by the employer from time to time to reinforce for possible commercial or business reasons a distinction in the work place between whole-time fire fighters and retained fire fighters."[55]Mr Paines points out that the Tribunal only considered the Appellants' work activities in the separate section dealing with their contractual terms between paragraphs 74 to 120 of its Decision, where, as is inevitable, some of those contractual terms reflected the Appellant's particular work activities: decision paragraph 79. Coming to its final conclusions on the issue of "same or broadly similar work" at paragraphs 152-155 of its Decision, the Tribunal made no reference to the Appellants' contractual terms, but simply to 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." Mr Paines says that this is a clear reference back to the analysis of the Appellants' work at paragraphs 7-73 of the Decision.[56]Finally, Mr Paines submits that the Tribunal were entitled to take account of demand led unpredictability of the retained fire fighters' work, the pool of potential candidates for recruitment and the unavailability of promotion for retained fire fighters in assessing whether they were engaged in the "same or broadly similar" work. The Employment Appeal Tribunal Decision[57]We agree with the Respondents' submissions. It is not for us to comb through the Employment Tribunal's Decision line by line to see whether there was perversity: Yeboah .[58]In our judgment, the Employment Tribunal approached its fact finding in a rational and compelling way. We have earlier in this judgment set out the similarities and differences which the Employment Tribunal found between the work of retained and whole-time fire fighters: Judgment paragraph 39 (iv). We do not propose to repeat them here. They were all differences which the Employment Tribunal were entitled to find on the evidence before it. There was no perversity here.[59]We accept Mr Paines' submission that the Tribunal did not take into account differences in the contractual terms and conditions of retained fire fighters and full-time fire fighters in assessing whether they did the same or broadly similar work. A careful analysis of paragraphs 7-73 of the Tribunal's Decision shows that the Tribunal was analysing the main factual differences between the work of whole-time and retained fire fighters. It recognised that fact: decision paragraph 72. The contractual terms and conditions were considered separately between paragraphs 74-120 of the Decision and the Tribunal specifically stated that it had separated out the main factual differences between the work of whole-time and retained fire fighters from the contractual terms and conditions and gave their reasons for so doing: decision paragraph 74. Although we heard considerable argument about the issuing of fire certificates we do not think the Tribunal erred in its factual findings on this matter.[60]Furthermore, in coming to its conclusion on the issue of "same or broadly similar" work the Tribunal made no reference to the Appellants' contractual terms but simply to 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": decision paragraph 154. See also decision paragraphs 152-153. There was no perversity or error of law here.[61]Finally, for the reasons set out in paragraphs 60-67 of Mr Paines' Skeleton Argument we do not find that there were any irrelevant considerations taken into account by the Employment Tribunal. In summary form those matters are as follows:(i) demand-led unpredictability is a feature of the retained fire-fighters' working pattern, as the Tribunal itself found as a fact: decision paragraph 38. In any event the Tribunal assessed its significance as "low": decision paragraph 42;(ii) comment about the pool of recruits being limited forms part of the Tribunal's decision dedicated to the issue of recruitment: decision paragraph 43-53 the Tribunal made a number of points as to the qualitative differences in the procedures and mechanisms for the selection of retained fire fighters, e.g. lower standard of written tests, their strictly-applied eyesight tests and no requirement of mobility at all. All of these were either differences in the work of retained fire fighters or the standard of qualification and skills required for that work. The relatively small pool of recruits available for each retained fire station is relevant to each of those points, because the different requirements for retained fire fighters are necessary in order to ensure that there are enough recruits to have an effective retained service in the relevant area: decision paragraph 45;(iii) The Tribunal specifically excluded from consideration the fact that retained fire fighters cannot normally be promoted beyond Sub-Officer level: decision paragraph 153.(iv) The Tribunal were entitled to take account of the fact that retained fire fighters were eligible for promotion to junior ranks because the Appellants themselves argued that in front of the Tribunal on the basis that they did the same or broadly similar work as full-time fire fighters.(v) The Tribunal did not take account of experience as a relevant factor: decision paragraph 153. The Third Ground of Appeal: Less Favourable Treatment[62]Section 5 of the PWTR provides as follows: 5(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."[63]The pro rata principle is defined by Regulation 1 (2) as meaning:
"that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time …"
[64]The Employment Tribunal went on to consider the application of Regulation 5 if it were wrong about its first two conclusions. It did so at paragraph 156 of its decision: 156 Finally we were invited to consider whether the Applicants would succeed if we were wrong on our first two conclusions under Regulation 5. We have already set out our factual conclusions that it is effectively a foregone conclusion that on a straightforward like for like term by term comparison the retained fire fighter would be treated less favourably as to pension benefit, (in some cases) sick pay and pay for additional duties. Were we carrying out this exercise we would not find it necessary to be troubled by the applicability of the "pro rata principle" because in our judgment the principle is plainly "inappropriate" for an assessment of the comparative financial benefits on each side."[65]The Third Respondent cross-appeals against that finding. Mr Paines submitted that the Tribunal adopted the wrong legal test in assessing less favourable treatment at paragraphs 106, 116, 119 and 156 of its Decision by comparing each term in the Appellants' contracts against those of their comparators, rather than comparing the overall favourableness of the packages given to the two groups.[66]Mr Paines accepts (as do the Appellants) that the Tribunal was correct in deciding that the pro rata principle was inappropriate. His submission is that one cannot appropriately compare the Appellants' terms and conditions with those of full-time fire fighters on the basis that each term in one package must have its counterpart in the other. Comparison on that basis simply cannot be done in a case where (as here) it is reasonable to have a differently-structured package for retained fire fighters. The First and Second Respondents do not cross-appeal on this point.[67]The Appellants resist the cross-appeal and submit that the Employment Tribunal reached the correct conclusion. Mr Langstaff argues that the PTWR envisage and provide for complaints of less favourable treatment as regards terms of the contract and any act or failure to act: Regulation 5 (1). These complaints must be about specific "matters": Regulation 8 (4) (a) refers to a term and not the whole contract. Regulation 8 (7) (a) provides for declaratory relief in respect of "the matters to which the complaint relates", not the whole package.[68]The PTWR expressly envisages complaints about specific provisions in the contract, e.g. Regulation 5 (4) in respect of overtime and Regulation 8 (8) in respect of occupational pension schemes.[69]Mr Langstaff further submits that one of the purposes of the PTWR is to achieve an improvement in the living and working conditions of workers in the European Community: third recital to Directive 97/81/EC. That purpose would be frustrated if the subject of complaint (specific less favourable treatment) could properly be ignored by being subsumed within a generalised package approach.[70]Finally, Mr Langstaff relies upon the decision of the House of Lords in Hayward v Cammell Laird [1988] ICR 464 and specifically the judgment of Lord Mackay of Clashfern LC at page 468 H – 469 G and 473 H – 474 B; and Jamstalldhetsombudsmannen v Orebo Lans Landsting [2001] ICR 249 at page 267 paragraphs 43 – 44. The Employment Appeal Tribunal Decision[71]We accept the submissions of Mr Langstaff. In our view it will be practically impossible to achieve proper and effective equality between part-time and full-time workers if a broad-brush approach is adopted. As this question arises in judicial proceedings it will be for an Employment Tribunal to decide in each case. We see no difficulty here. Furthermore (and despite the fact that those cases concerned equal pay), both Hayward and Landsting provide strong judicial support from the House of Lords and the European Court of Justice for the specific term by term analysis contended for by Mr Langstaff and agreed by the Employment Tribunal to be the correct approach. The Fourth Ground of Appeal: Causation[72]Regulation 5 (2) (a) states that the right not to be treated less favourably by the employer applies only if: (a) "the treatment is on the ground that the worker is a part-time worker…" The Employment Tribunal deal with this at paragraphs 157 – 160 of its Decision where it says this: 157 "On the issue of causation we would have to decide whether the unfavourable treatment were "on the ground that the worker is a part-time worker" within the meaning of Regulation 5 (2) (a) and further that under paragraph (b) "the treatment is not justified on objective grounds". 158 Mr Bowers and Mr Paines both made without prejudice submissions about this part of the Regulations and continued to defend the Respondent's position to the last ditch under this Regulation as well. We direct ourselves that a view about this Regulation expressed in these reasons is probably not binding upon the parties but nevertheless we express our main conclusions on these issues as follows. 159 We apprehend that the Regulations will almost certainly when fully in operation have to deal with a whole variety of situations and there may well be a group of part-time employees who are employed under a "similar type of contract" who are carrying out "the same or broadly similar work" but who nevertheless do not receive, say, a particular benefit which is received by their whole-time comparable worker. Thus for the sake of example the Saturday afternoon shop assistant may not receive a subsidised canteen lunch or the evening casual insurance salesman may receive a car allowance instead of being provided with a car. 160 We direct ourselves that the correct causation test in each such case and indeed in our own much more complicated case is the "but for" test and as a matter of causation we find that it necessarily follows that any particular term which is more advantageous for the whole-time worker is necessarily as a consequence of and thus "on the ground" of the part-time/full-time comparison. We find that as a matter of causation virtually all the differences which may appear either to be advantageous or disadvantageous on the facts before us are patently "on the ground that" one fire fighter is retained and the other is whole-time."[73]All three Respondents appeal against this finding. Mr Bowers submits that the Employment Tribunal should have found (but did not find) that the Appellants had not established that the alleged less favourable treatment was on the ground that retained fire fighters are part-time workers under the Regulations: retained fire fighters are not treated as they are because they work less hours than whole-time fire fighters, but because the whole underlying rationale of their contracts is unique and distinctive, resembling voluntary work and piece work. Mr Bowers submits that part-time workers are paid on the basis of the amount and type of work they undertake and not because they work part-time. The reason is not the Appellants' part-time status but the operational needs of particular communities.[74]Mr Paines submits that the issue under Regulation 5 (2) (a) was whether the Appellants' treatment resulted merely from their working less than full-time hours. He submits that the different treatment of retained fire fighters is not simply on those grounds, but on the grounds of their particular position as "retained variable hours employees" working irregular hours in an employment that is designed to be additional to a main occupation.[75]As the Employment Tribunal itself found that the Appellants' treatment resulted from their "very special anomalous atypical and possibly unique" circumstances: decision paragraphs 142-144, the Tribunal ought to have held that the condition in Regulation 5 (2) (a) was not satisfied.[76]The Appellants support the decision of the Employment Tribunal. Mr Langstaff submits that the retained fire fighters would have to be able to access the benefits in issue if they had been full-time fire fighters: their part-time status was therefore the effective cause of the differential treatment. He relies upon James v Eastleigh Borough Council [1990] 2 AC 751 per Lord Bridge at page 765 D-E. Mr Langstaff argues that the relevant difference between the whole-time fire fighter and the retained fire fighter, is that one is retained whereas the other is whole-time. The benefits to which the retained fire fighters lay claim are those which because they are retained they do not have. The Employment Appeal Tribunal Decision[77]We agree with Mr Langstaff's submissions for two reasons. First, the finding of the Employment Tribunal on causation is unimpeachable. It beggars belief that the "but for" test applies in race and sex discrimination but not in discrimination against part-time workers. In our judgment the Employment Tribunal correctly directed itself in this respect. Second, at this stage of the enquiry the Tribunal claim had been about a test group of retained fire fighters compared to full-time fire fighters. There was no enquiry into the individual circumstances of particular individuals. Neither were the Employment Tribunal asked to carry out such an exercise. There was really no room to attribute a cause other than their part-time status to the less favourable treatment which, at this stage of the enquiry, had been established. The Fifth Ground of Appeal: Objective Justification[78]Regulation 5 (2) (b) provides an exception for an employer to treat an employee less favourably than a comparable full-time worker, if the treatment can be justified on objective grounds. The Employment Tribunal said this about objective justification: 161 "Were we required to reach a conclusion about "objective" justification we were presented with an argument mainly from Mr Paines on behalf of the Second Respondent that effectively it was an objectively justifiable social policy that the Retained Fire Fighter Scheme should be set up in the way that it is and (again at risk of very over simplifying his submissions) the long standing historically negotiated agreements and the whole national need for a reserve pool of emergency fire fighters would justify the few terms which the retained fire fighters have elected to pick on as being differentially unfavourable. Neither Mr Bowers nor Mr Paines appear as such to be submitting that the fact that overall in the round and by an assessment of the swings and the roundabouts the total package is a fair one would amount to "objective justification". 162 As a matter of law we would not be minded to accept that the fairness of the totality of the package would amount to "objective justification" if it were necessary for us to decide that question. We discussed in submissions with Counsel the consequence for the industry as a whole were we to be persuaded say that the retained fire fighters should be awarded a racheting up of the benefits which of the few benefits which are patently "lower". In so far as we suggested that there might be the consequence that that in turn would provide benefits for whole time fire fighters we believe that would be an incorrect analysis since (unlike in sex discrimination cases where the benefits achieved in litigation by the female employee are automatically gained by the male employee) the whole time employee cannot complain about benefits earned by part-time employees under the PTWR. 163 The Respondents protest about the aspect of the Applicant's claim which they describe in convenient and simple shorthand under the proposition "having one's cake and eating it". Had it been necessary for us to decide this issue we direct ourselves that the Regulations do not prevent a part time worker coming within the Regulations from achieving such a superficially unattractive benefit. Putting our conclusion a different way we direct ourselves that it is not open to the employer to argue that the part time employee gains other financial benefits on the swings which "make up for" the losses. 164 Returning thus to our more simple examples of the benefits denied to the weekend shop .assistant and casual salesman we find that in each case we believe it would be obvious that the part time employee would be entitled to the benefit in question and it would not be open to the employer for example to argue that the part time or "casual" employee receives a higher hourly rate of pay which should somehow be offset against the benefit denied. As a matter of the industrial work place we suspect that initially such imbalances may occur but will be ironed out and shaken out in subsequent pay negotiations. The same position has obtained for example in the much litigated question of holiday pay and there have been many cases where an employer has sought to argue that the casual worker has been receiving an enhanced rate of pay "to make up for" non received holiday. Save where very specifically provided for Tribunals have rejected that kind of argument. On that logical process therefore we would reject the Respondent's submissions and find that unless objectively justified the three claims made by the Applicants would causally be established. 165 Turning then finally and hypothetically to the question of "objective justification" for the previously recited reasons we do not accept that the Respondents would be entitled simply to argue that the whole scheme is reasonable and justifiable and more or less fair and that that amounts to justification. In the particular more simple examples we have set out above we could imagine that a valid objective argument could be put forward that a casual insurance salesman has little need for a car instead of a car allowance and that perhaps that might amount to objective justification in respect of that particular benefit. In the case of pension entitlement, sick pay and the pay for additional duties we cannot see that as particular benefits under the contract which are not provided looked at in isolation there could be any objective justification for the non-provision of those benefits and in our concluding paragraphs we express some further general observations about that issue."[79]The Third Respondent cross-appeals against that finding by the Employment Tribunal. Mr Paines argues that the Tribunal adopted the wrong legal test by focusing on whether the Appellants could be accommodated within a pension scheme at all, rather than whether it was appropriate to exclude them from the existing Scheme. The First and Second Respondents did not cross-appeal on this point.[80]The Appellant resists the cross-appeal and supports the view of the Employment Tribunal. Mr Langstaff argues that the DTI Guidance Notes to the PTWR indicate the three-stage test for objective justification, laid down by the European Court of

Justice in Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607 at paragraph 36, namely:

"The right of part-timers not to be treated less favourably than a comparable full-timer applies only if the treatment is not justified on objective grounds. Less favourable treatment will only be justified on objective grounds if it can be shown that the less favourable treatment: (1) is to achieve a legitimate objective, for example, a genuine business objective; (2) is necessary to achieve that objective; and (3) is an appropriate way to achieve the objective."
[81]Mr Langstaff argues that the onus of proving such an objective justification lies on the Respondents in respect of each matter complained of and that the Employment Tribunal was entitled to reject the Third Respondent's submissions for the reasons given: decision paragraph 161-165.[82]Furthermore, the Employment Tribunal were entitled to reject the argument that it would be impossible to accommodate retained fire fighters within the Fireman's Pension Scheme . There was reliable and cogent expert evidence before them from Mr Ross to support that conclusion. The Employment Tribunal did not focus on this issue, but rather determined it in passing and by way of completeness. The Employment Appeal Tribunal Decision[83]We agree with the Appellants on this issue. The DTI Guidance Notes to the PTWR are not binding upon us and only express the view of the DTI. However, we are entitled to have regard to the Von Hartz case and the very cogent test of justification on objective grounds set out in that case. We adopt it and apply to here.[84]Essentially, objective justification is the application of a proper legal test to the facts of the individual case. In the two main points of this appeal the Respondents have relied heavily upon the fact of a ten-day hearing with witnesses and 2,500 pages of documents. What is sauce for the goose is sauce for the gander. It seems to us that this is an issue of fact. There is no error of law. Conclusion[85]For these reasons we dismiss the appeal and the cross-appeals.