McMenemy v. Capita Business Services Ltd [2006] UKEAT 0079_05_0803

EAT
McMenemy v. Capita Business Services Ltd
[2006] UKEAT 0079_05_0803 · 2006-03-08
The claimant was a part-time worker who had opted to work 3 days per week, on Wednesday, Thursday and Friday. He claimed that he was being treated less favourably than comparable full-time workers as he did not get the benefit of public holidays which fell on Mondays. There could be 8 such days in a year. Both his and the full-time workers' contracts of employment provided that they were entitled to take public holidays only when they fell on a normal working day. The respondents' business operated on a 7 day per week basis and the comparable full-time workers could work on five days which excluded Mondays, in which case they would not get the benefit of any Monday public holidays either. The tribunal found that although the claimant was suffering a detriment it was not on the ground that he worked part-time but because he did not work on a Monday. The claimant appealed, arguing that the tribunal had erred in their assessment of the relevant comparable full-time worker. The Employment Appeal Tribunal agreed with the tribunal and refused the appeal.

THE HONOURABLE LADY SMITH

Preliminaries

[1] This case is about the right of a part–time worker not be treated less favourably than a comparable full-time worker on the ground that he works part–time. This judgment represents the views of all three members. We will refer to the parties as claimant and respondents

Introduction

[2] This is an appeal by the claimant against a decision of an Employment Tribunal sitting at Glasgow, Chairman Mr M W MacMillan, registered with extended reasons on 4 August 2005. The claimant was represented there by Ms R Blair, solicitor and before us by Mr Stevenson, solicitor advocate. The respondents were represented there by Mr G Hayes, solicitor and before us by Mr Jones of counsel.[3] The claimant claimed that he was suffering detriment in the manner in which the respondents applied the provisions of his contract of employment relating to the incidence of public holidays. He worked part–time, on Wednesdays, Thursdays and Fridays. Accordingly, when a public holiday fell on a Monday, he did not get the benefit of it. He was not given any additional days off in lieu. In the case of a full-time employee working Monday to Friday, the benefit of the Monday holiday would be received. There were eight public holidays each year, four of which were always on a Monday (Easter Monday, May Day, Spring Bank Holiday and August Bank Holiday), three of which were variable but could be on a Monday (New Year's Day, Christmas Day and Boxing Day) and one of which was always on a Friday (Good Friday). It was also evident that in the event of a part- time worker working, say, Monday, Tuesday and Wednesday, he would be in a advantageous position as compared to a full-time worker who did not work on a Monday since he would receive all the benefits of the Monday holidays and such a full-time worker would receive none.

The Issue

[4] The issue addressed by the tribunal was whether the detriment suffered, namely that the claimant never received any benefit from Monday holidays, was on the ground that he was a part-time employee, or for some other reason.

Relevant Legislation

[5] The relevant legislative provisions are to be found in regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 :
"(1) A part-time worker has the right not to be treated by his employers 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."[6] The principle of non- discrimination that is enshrined in the regulation is founded upon clause 4 of Council Directive 97/81/EC concerning the Framework Agreement on Part-Time Work as extended to the United Kingdom by Council Directive 98/23/EC. Clause 4 provides:
"In respect of employment conditions, part- time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds."
The Employment Tribunal's Judgment [7] The Employment Tribunal found that the claimant's rights had not been breached because the relevant distinction was not between full-time and part-time workers but between those who worked on Mondays and those who did not. It was because the claimant did not work on a Monday that he did not receive the Monday holiday benefit, not because he was a part–time worker. At paragraph 20 of their reasons, they explain their approach :
"On the evidence it seems to us that if the claimant had resumed full-time working on a Tuesday to Saturday basis, he would still not have been afforded the benefits of statutory holidays. The whole basis of the policy both in relation to full-time and part-time employees makes it clear that in the interests of overall fairness to the whole workforce, the benefits of statutory holidays will only apply to those who work them. The distinction therefore is not between full-time and part-time workers but between those who work Mondays and those who do not, whether or not they are full-time. This would have been clearer if there had been such a full-time employee; but the manner in which the case of Mr Keeman was dealt with leaves us in no doubt that had such a hypothetical employee existed, he or she would not have had the benefit of statutory holidays. The regulations do not incorporate any form of indirect discrimination, so that it is not open to the claimant to argue that part-time workers are disproportionately disadvantaged by the arrangements."

The Facts

[8] The respondents are a large company. They provide business support services throughout the UK. They operate on a seven day per week basis. One of their call centres is based at Glasgow, where there are about 120 employees. The claimant was employed as a member of their research team there as from 1998. Initially he worked on a full time basis. In April 1999, he applied for part- time working so as to enable him to fulfil his child care responsibilities. He and the respondents reached agreement that he would, thereafter, work on a part-time basis, on Wednesday, Thursday and Friday each week. Thereafter, he was not allowed time off in lieu when public holidays fell on Mondays although full-time workers in his team who normally worked on Mondays were given the day off.[9] The team in which the claimant worked seems to have varied in size but was of about 8-10 full-time equivalent members. For a period, his line manager, Mr Keeman, worked full-time Tuesday to Saturday. It was made clear to him by the respondents in April 2004 that he was not, when working those days, entitled to days off in lieu when he missed a Monday public holiday. The respondents' approach was in accordance with the terms of the contracts of employment issued by the respondents. Whether in respect of part-time or full-time employment, clause 9 of those contracts provided that employees were entitled to public holidays only:" …where these fall on your normal working day………".

The Claimant's case on Appeal

[10] The claimant contended that he was entitled to additional holidays on a pro rata basis when public holidays fell on a Monday. Firstly, he submitted that the tribunal erred in comparing the claimant to a hypothetical full-time employee. The tribunal required to confine themselves to comparing the claimant to actual comparable full-time employees. The regulations required them to do so. Reference was made, in support of that submission to Tyson v Concurrent Systems Inc. (EATl/0028/03 ), Royal Mail v Lynch (EAT/0426/03) , Wippel v Peek & Cloppenburg GmbH & ors [2005]IRLR 211 and guidelines issued by the DTI. Secondly, the pro rata principle was, it was said, built into regulation 5(3) and ought to have been applied in the claimant's case. The respondents were not entitled to say, as they did, that they were applying their policy. Reference was made, in respect of the application of the pro-rata principle, to the case of James v GNER (EAT/0496/04).

The Respondents' Case

[11] For the respondents, Mr Jones submitted that the claimant's approach was ill founded. He had conflated the two questions that arose from the regulations, namely firstly was there less favourable treatment and, if there was, secondly, whether that treatment was on the ground that the claimant was a part-time worker. Whilst there was no place for a hypothetical comparator when considering the first question, the tribunal were entitled to consider such a person when it came to the second question. The tribunal had accepted that the respondents' policy was that if an employee did not work on a Monday, then he would not receive the benefit of Monday public holidays. They had accepted that that policy had been applied as a matter of fact in the case of Mr Keeman, a member of the claimant's team. The task for the tribunal was to ask why it was that the respondents had done as they did in refusing to allow the claimant time off in lieu of holiday Mondays. From paragraphs 13 and 14 onwards in their reasons, that was the question they were addressing. They had clearly found that the respondents were genuine in their assertion as to what their policy was and that they were asserting it in the claimant's case rather than using it as a device to cause detriment to a part- time worker. Reference was made, in support of the respondents' submission to the cases of Gibson v The Scottish Ambulance Service (EATS/0052/04) and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 .

Discussion

[12] Bearing in mind the facts of this case and the terms of regulation 5, two questions arose:1. Did the term of his contract of employment which had the effect that the claimant did not receive any days off in lieu of Monday public holidays result in him receiving less favourable treatment than a comparable full time worker ? and2. If so, was that treatment on the ground that he was a part- time worker ?[13] The tribunal answered the first question in the affirmative, holding, at paragraph 13 of their reasons that :
"It was clear from the evidence that the claimant was suffering a detriment by comparison with the other members of his team."
[14] They quite properly, in doing so, considered the position of an actual comparator.We agree with the comments at paragraph 29 of the case of Tyson that it seems that the approach of constructing a hypothetical comparator that is often used in cases under the Race Relations Act 1976 and the Sex Discrimination Act 1975 is probably not apposite under these regulations where the prohibition is confined to treatment on the proscribed ground that is less favourable than that actually afforded to a full time comparator and is not extended to treatment that 'would' be afforded to a comparable full time worker. The likelihood that that is the correct approach is supported by the approach in the case of Wippel where, in the absence of any actual full-time comparable workers, there was no attempt to construct a hypothetical comparator and the European Court of Justice were satisfied that there had been no discrimination against the part- time workers.[15] Having determined that there had been less favourable treatment, that left for the tribunal's consideration the 'reason why' issue of whether or not the treatment was on the ground that the claimant was a part-time worker. They approached the resolution of that issue by considering the evidence before them regarding the nature of the respondents' business, their policy regarding holiday Mondays, the way in which that policy had been applied some eleven months earlier in Mr Keeman's case and the position of any part-time worker who worked on Mondays. Having done so, they found that the reason that the claimant was receiving the treatment complained of was not because he was a part-time worker but because he did not work on a Monday.[16] We are readily satisfied that the conclusion reached by the tribunal was one which they were entitled to reach on the evidence. They did, as Mr Stevenson pointed out, consider what would have happened if, at the time they were considering matters, one of the comparable full time workers was not working on Mondays. To that extent, they were constructing a hypothetical employee. That was, however, something that they were quite entitled to do when considering the second question, the 'reason why' question. The respondents asserted that the reason was a policy which applied to all workers, full and part-time, and not that the claimant was a part-time worker. The tribunal had to ask themselves whether or not they accepted that that was so. There was evidence that the respondents' business operated on a basis which meant that full-time workers might not work on a Monday, that the terms of their contract regarding the availability of Monday holidays was identical to those in the claimant's contract, that there had been a full-time employee in the claimant's team who had until relatively recently worked Tuesday to Saturday, that when he had been doing so, the respondents had made it clear to him that he was not entitled to take days off in lieu when there was a Monday public holiday and that had an employee worked part-time on days that included Mondays, they would have been able to take every Monday holiday. In the circumstances , it was obviously open to them to conclude that a full-time employee who did not work on Mondays would have been treated to the same as the claimant as regards Monday holidays. That was clearly powerful evidence in support of the respondent's case that the reason for the claimant's treatment and the ground on which he received it was nothing to do with his part-time status. There was nothing wrong in them asking themselves what would have happened if there had, at that time, been a full-time employee in the claimant's team who did not work on Mondays.[17] We cannot accept Mr Stevenson's approach of excluding consideration of that evidence because it amounted to the construction of a hypothetical comparator and agree with Mr Jones that it amounted to wrongly conflating the two questions that required to be asked. That was evidence upon which it was open to the tribunal to determine that the ground for the respondents' decision to refuse the claimant's request for days off in lieu of Monday holidays was not that he was a part-time worker but that he did not work on a Monday. The tribunal were entitled to find that that was their reason and did so.[18] Separately, we are satisfied that the tribunal did not err, as was submitted on behalf of the claimant, by failing to have regard to the pro-rata principle contained in regulation 5(3). The claimant's argument seemed to be that he had a stand-alone right to pro-rata treatment as regards holidays. He could demonstrate that, pro-rata, he received less holidays than a comparable full-time worker and that was something that he was entitled to have corrected. The argument fails, however, to recognise the purpose of regulation 5(3). It clearly relates only to the first question of whether or not a part-time worker has received less favourable treatment than a full-time worker. It is not stated as an independent right and it is not something that a tribunal is directed to have in mind when considering whether or not the less favourable treatment is on the ground that the employee is a part-time worker.

Disposal

[19] In these circumstances, we shall refuse the appeal.