MRS F ENGLAND v THE GOVERNING BODY OF TURNFORD SCHOOL [2003] UKEAT 438_02_0602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 438_02_0602Case No Appeal No. EAT/438/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS F ENGLANDAPPELLANTTHE GOVERNING BODY OF TURNFORD SCHOOLRESPONDENT
Before
His Honour Judge Ansell Mr D Norman Mr D SmithDate 6 February 2003
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MISS M PERKINS (of Counsel) Instructed by: Hertfordshire County Council County Hall Hertford Herts SG13 8DE HIS HONOUR JUDGE ANSELL This appeal proceeds today, following leave given by a preliminary hearing, on a single issue in relation to the meaning of two Regulations in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The Applicant had applied to a Tribunal on a number of grounds, breach of contract, unlawful discrimination, under the Part Time Workers Regulations.[2]The issue of the Regulations was dealt with at the conclusion of the Applicant's evidence, and was dealt with briefly by the Tribunal in paragraphs 3 and 4 of their Reasons as follows:
"(3) In relation to the discrimination claims the Tribunal considered firstly the complaint under Regulation 5. This requires that a comparison be made as to the treatment of a comparable full-time employee. The Applicant in her evidence identified two persons with whom she was to be compared. These persons work 35 hours during term time and one week outside term time. The contractual documents submitted by the Applicant show that the hours for full-time workers are 37 hours per week every week. (4) The Tribunal considered Regulation 2 of the Regulations, which provides as follows: "
A worker is a full-time worker for the purposes of these regulations if he is paid wholly or in part by reference 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."[3]The Applicant in this case had commenced work at the Respondent's school in the reception section, working initially eighteen hours per week; during term time those hours increased slightly to cover additional finance work which she was asked to undertake. The comparators that she had put forward in her documentation were two ladies, Mrs Ablett and Mrs Felgate, who also worked in that section and it is agreed that they worked thirty five hours per week, plus one extra week during the year, but effectively were term time workers as well.[4]The Applicant's case was that those two ladies should be treated as full-time workers, and therefore comparators because nobody else in her department worked longer hours. The document to which the Tribunal made reference was a local authority document which it is agreed formed part of this lady's contract of employment. The contractual situation is a little complicated, where the immediate employer is, in fact, the governing body of the school. This is pursuant to statutory regulations, but the Local Authority in this case, Hertfordshire County Council, perform an overarching supervisory role of all schools, and, indeed, within the contract of employment and the letter of employment we have seen, there is incorporated within it the local authority's "appointment of support staff booklet". It is that booklet to which the Tribunal made reference and in that booklet, under the section "Hours" there is stated as follows: Full-time staff are required to work 37 hours a week or as determined by the Governing Body"[5]Regulation 5 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 -(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."[6]That regulation therefore requires a comparison to be drawn between a part-time worker and a full-time worker. If one then looks back to Regulation 2 for the definition of those two workers. "A worker is full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker." The Appellant's case today is that under the custom and practice of the school, the two ladies that she put forward were to be regarded as full-time workers.[7]The Tribunal, however, found that there was no evidence which was put before them that suggested that the school had indeed treated those two ladies this way. The documents they looked at by the close of the Applicant's case were obviously the Applicant's evidence herself, but more particularly, the handbook to which we have made reference, and the handbook makes it clear that full-time staff are required to work thirty seven hours a week, or as determined by the Governing Body.[8]It seems to us, therefore, that the Regulations would require there to be some evidence before the Court, that the school regarded these two ladies as full-time employees and there was, regrettably, nothing put before the Tribunal by the Applicant, other than her own contention that the school treated those two other ladies as full-time employees. Her contract incorporating the handbook did not support her case.[9]Indeed, we would add that had the matter proceeded further, there was clear written evidence from two witnesses, Mr Bosworth, who was the Financial Supervisor, and, indeed, Mrs Ablett herself, one of the two comparators, that they were regarded as part-time workers, and not full-time workers, so that if the matter had proceeded further, there was overwhelming material, in our view, that there certainly was no evidence of any custom or practice of this particular employer to treat those two ladies as full-time workers.[10]We are therefore of the view, unanimously, that the Tribunal's Decision on this aspect of the case was correct, and we would dismiss this appeal.