MISS P SHARMA & OTHERS v MANCHESTER CITY COUNCIL [2008] UKEAT 0561_07_0403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0561_07_0403Case No Appeal No. UKEAT/0561/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS P SHARMA & OTHERSAPPELLANTMANCHESTER CITY COUNCILRESPONDENT
Before
Mr Justice EliasDate 4 March 2008
[1]APPEARANCES For the Appellant MISS R SHARMA (The Appellant in Person) For the Respondent MR BRIAN McCLUGGAGE (of Counsel) Instructed by: City Solicitor PO Box 532 Town Hall Albert Square MANCHESTER M60 2LA SUMMARY Part time workers Alleged discrimination against part time workers. The Employment Tribunal found no such discrimination, largely on the grounds that it had to follow the EAT decision in Gibson v The Scottish Ambulance Service EATS/0052/04 which appears to have required any discrimination to be solely on the grounds of part time status and not where it was only in part for that reason. The EAT upheld the appeal. Gibson, if and to the extent that it made any such ruling, should not be followed. In any event, in this case the discrimination was properly analysed solely because of part time status. Since the Tribunal found that it was not justified, the claims for all but one of the claimants succeeded and the matter was remitted for the Tribunal to consider the appropriate remedy. One of the claimants was in a different category of part timers from the others. Her claim had not been determined and it was not self evident that it would either succeed or fail. Accordingly, her case would be remitted to the same Tribunal. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) The appellants in this case (whom we shall call the claimants, as they were in the employment tribunal below) appeal against the unanimous finding of the Employment Tribunal sitting in Manchester that they had not been subject to unlawful treatment contrary to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations").[2]The detailed factual background is somewhat complicated. However, we will seek to focus on the material aspects necessary properly to understand the nature of this appeal. The claimants were each employed by the respondent, Manchester City Council. They were part time workers with the Manchester Adult Education Service (MAES). The MAES provides courses in a variety of matters from the more traditional work related skills such as numeracy, literacy, and IT, to other more leisure type activities such as flower arranging and porcelain making.[3]The part time lecturers work at various venues around the Manchester area. MAES was funded partly by the local authority, partly by the Learning and Skills Council and, to a small extent, by fees raised from students.[4]The MAES work force is split into a number of categories. There are full time staff employed in the normal way. The part time staff then fall into four sub-categories. First, there are pro rata part time workers, whose contract was generally about 50% of full timers. Their contractual terms mirror those of the full timers in every respect and they receive the appropriate pro rata percentage of the benefits given to full timers.[5]Second, there are those who are employed under what are termed 'fractional' contracts. Those working on these contracts work at least a minimum number of designated hours per week, for which they receive benefits pro rata to full timers. However, they will also from time to time work hours in excess of the guaranteed hours. They are then paid separately for those hours and not on a pro rata basis. For example, the Tribunal found that the worker would not receive sick or holiday pay with respect to these hours. One of the claimants, Ms Harris, falls into this category.[6]Third, there is a category known as established part timers. In fact, all the claimants bar one fall into this category. These lecturers work hours which can be varied year on year subject to their being guaranteed one-third of the hours they had worked the previous year. This is, to put it shortly, the effect of Appendix 10 of a Collective Agreement negotiated in 1998. The claimants initially were unaware of this provision, but before the Employment Tribunal they accepted that it was binding upon them. We consider the implications of this Appendix below.[7]Finally, there are non-established part timers. These are persons who have not passed the probationary period but in other respects are subject to the same terms as the established part timers. They do not figure in this appeal, although so far as the application of these Regulations is concerned, it is difficult to see how their legal rights are any different to the established part-timers. Appendix 10[8]This Appendix was negotiated between the City Council and the Unions in 1998. Essentially it provides that the guaranteed minimum hours for an established contract will be one-third of the total output the previous year. This refers to working hours rather than teaching hours and takes account of preparation and marking time.[9]The Appendix envisaged that if in any year the contract offered fell short of the guaranteed minimum number of hours then there would be a discussion between staff member and line manager and the guarantee would be achieved either by adding certain duties so as to increase the hours required, or alternatively, negotiating a programme to take place later in the year which would restore the overall minimum guarantee.[10]If either of those options was refused by the employee, that was deemed to be an unreasonable refusal and it would invalidate the guarantee. In other words, procedures were adopted to seek to ensure that work was secured from the lecturer for the guaranteed minimum hours. The guaranteed minimum would never fall below one hour per week. For a 36 week year that would therefore mean that the guarantee would be 36 hours annually. It follows that the minimum hours worked the previous year to achieve that minimum would have had to be at least 108 hours.[11]The Tribunal found that in practice none of the established part time lecturers appreciated that Appendix 10 was in existence and applied to them. Indeed, the claimants' manager said she was unaware of the provision. Typically, no doubt, the offers to staff would exceed the minimum guaranteed by the Appendix.[12]In 2003 the Council sought to improve the situation of the established part time lecturers by offering them fractional contracts. They were still to be guaranteed a minimum number of hours, but that was to reflect what they had worked the previous year and not be limited to one third of those hours. Both the unions and the employers were disappointed with the take up for these contracts, since the new arrangements appeared highly beneficial from the workers' point of view.[13]However, the Tribunal noted that there were two problems in particular which may have explained this. First, none of the work force was aware of Appendix 10, and therefore did not appreciate that fractionalisation was a distinct improvement on the limited guarantee conferred by the Appendix. Second, the fractionalised offers often resulted in lecturers being offered fewer hours than they had in fact been doing. Management claimed that if the figures were inaccurate they could be renegotiated; there was no hidden agenda to reduce the hours worked. However, many staff thought that this was a deliberate attempt to cut costs and did not appreciate that they could challenge the offer made if it did not fairly reflect the hours they actually worked.[14]In 2005, there were considerable funding uncertainties which caused the employers to suspend the move towards fractional contracts. In addition to the financial difficulties the Council was undergoing an OFSTED inspection during 2006. They had done badly in the previous one and they wished to await the outcome of the new inspection to determine how to restructure the MAES. At one stage the possibility of contracting out was mooted. In fact, following the second OFSTED inspection in May 2006 it was agreed that the service would continue. However, an additional funding problem was that the Learning and Skills Council wished to refocus its attention on the 14-19 age group, rather than on adults. That, of course, had an adverse effect on the funding.[15]A report went to the Strategic Management Team on 6 June 2006. Its purpose was "to set out the current position with MAES and present options for immediate action to enable the service to meet the strategic employment and social needs of the city; and deliver a sustainable, fit for purpose quality service for Manchester's learners." The report noted that the budget was over £12million. There had been an over spend in the previous year of £649,000.00, but with the reduction in funding from the Learning and Skills Council, it was anticipated that the shortfall in the current year would be just under £1.5 million. That would be the extra finance required to deliver the same service for 2006-2007 with respect to the financial year and that figure increased by some £0.5 million with respect to the academic year.[16]The officers had to consider how to effect the necessary savings. They considered a number of options which considered a range of services to be offered and the staff necessary to provide them. The Tribunal considered all this in significant detail, but it is not necessary to recount that evidence in this appeal. The Council would not permit compulsory redundancies. The strategy which the Strategic management team finally adopted involved making voluntary redundancies with redeployment where appropriate. It was envisaged that under this option staff would have to be reduced by between 150 and 200.[17]However, it was also made plain in the Report, and the Tribunal found that it must have been known to the unions, that if the relevant reductions were not achieved by voluntary redundancies, then management reserved the right "to allocate contractual work to teaching staff on a best fit basis". This meant, as the unions appreciated, that where there was a contractual obligation to provide work to particular lecturers then the teaching requirements would be met first by taking full advantage of those contractual obligations before allocating work to other employees. This in turn had adverse consequences, for those who were subject to Appendix 10, since they could only claim the right to work the minimum guarantee of one third of the hours worked in the previous year.[18]At the meeting in September 70 part time staff did not return for reasons which are not clear. However, only one person actually volunteered. Management were then briefed by Ms Eyres, Deputy Head of MAES, as to how to deal with the arrangements for the timetable. Effectively this was to implement the "best fit" policy. It was envisaged that through September there would first of all be an identification of those tutors who were timetabled fewer than their contractual teaching hours and they would be allocated teaching related activities to fill those hours prior to teaching being agreed for other staff. As the Tribunal put it, "Clearly all available hours were to be diverted to those with fixed hours under their contract. Understandably, the respondent did not want to pay staff for doing nothing." The Tribunal accepted evidence from Ms Eyres that she personally was not intending to target the part timers but they noted that "Given that those with fixed contractual hours had priority, this was a deluded - although we accept it was a genuine - belief."[19]The contractual hours of many established part time staff were reduced. Initially, one of the claimants, Rachel Sharma, complained that this amounted to an unlawful reduction of hours amounting to redundancy. She said she had worked a similar number of hours each year and there was no contractual right to reduce her hours by up to two-thirds. In fact, as we have indicated, she was wrong about that because that is precisely what Appendix 10 permits. Her grievance on this basis was rejected. She then appealed on the grounds that in any event Appendix 10 was unlawful because it conflicted with the 2000 Regulations . That appeal failed. It was heard by Ms Lorraine Shand, Head of Economic and Urban Policy, who noted that "In a situation where MAES had little direct control over funding and they needed management flexibility to vary the hours, this was a legitimate term which had been fairly applied."[20]The claimants - nine in all - then lodged their claims with the Tribunal. In its decision the Tribunal has identified the particular situation of each of the claimants. It is not necessary to spell them out. Suffice it to say that in each case for the established part timers they complain both about the fact that their contractual terms were less favourable, since the hours could be reduced in a way which was not true for full time employees; and also that the actual implementation of that power adversely impacting on this group of part-timers constituted less favourable treatment in the circumstances.[21]As I have said, one of the claimants was a fractionalised worker. She apparently advanced a similar argument to that advanced by the part timers. Her complaint was that the employers were choosing to refuse to allow her to work the extra hours over and above the guaranteed hours. It was said that this too amounted to less favourable treatment. The relevant legislation[22]The relevant domestic law is found in the 2000 Regulations. They are designed to give effect to the Part Time Workers Directive 98/23/EC which in turn was implemented to give effect to the Framework Agreement concluded by the Social Partners . Clause 1(a) states that the purpose of the Directive is "to provide for the removal of discrimination against part time workers." Clause 4 then states the concept of non-discrimination in the following terms:
" …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."
[23]That principle has been transposed into domestic law in similar, if more expansive, terms by Regulation 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."
[24]The basic scheme of the Regulations is that the claimant must first identify a comparable full time worker; he or she must then establish less favourable treatment, and satisfy the Tribunal that it is on the grounds that the worker is part-time. Once these elements are established, the onus shifts to the employer to show that there is an objectively justifiable reason for the less favourable treatment.[25]The concept of full time worker is defined in section 2(4). That provision was considered by the House of Lords in Matthews v Kent and Medway Towns Fire Authority [2006] ICR 365 . It was not disputed before the Employment Tribunal that the full time comparator chosen by the claimants was an appropriate one. Nor was it disputed that the existence and application of Appendix 10 constituted less favourable treatment than was afforded to full timers.[26]The two issues which the Employment Tribunal had to determine were these. First, were the claimants less favourably treated on the grounds that they were part time workers? Second, if so, was the treatment justified on objective grounds?[27]The Tribunal concluded that the reason for the less favourable treatment was not, or at least not solely, by virtue of being part timers, and it is this conclusion which is challenged in this appeal. The Tribunal went on to find, however, that if it was, there was no justification for the less favourable treatment. It is pertinent to note that when assessing justification they analysed both the implementation of Appendix 10 in 2006 and also the question whether the term itself was justifiable in principle and found neither justified. The employers have not sought to cross appeal that finding.[28]The sole issue, therefore, which we now have to determine is whether the Employment Tribunal erred in law in its analysis of the grounds of the admittedly less favourable treatment. The ground of the less favourable treatment.[29]A particular issue which engaged the Tribunal in this context was the significance of the word "solely" in clause 4 of the Directive. That was considered by the EAT (Lord Johnston presiding) in Gibson v The Scottish Ambulance Service EATS/0052/04. The EAT had to consider an allegation of discrimination contrary to the Regulations where the number of stand-by hours which a part time worker had to keep was disproportionate to the number which a full timer had to keep. The EAT heard submissions as to whether in determining the ground for the difference in treatment, it was appropriate to apply a "but for" test or a "reason why" test.[30]The former was adopted by the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 whereas the latter was adopted by their Lordships' House in Chief Constable of West Yorkshire Police v Khan [2000] ICR 1169 and other cases. The EAT accepted the employer's submission that it was appropriate to adopt the "reason why" test in the light of the various authorities since James . That identified the "real reason" for the treatment.[31]However, the EAT also commented on an additional argument advanced by Mr Napier QC for the employer. He had submitted that the Regulations should be interpreted consistently with the Directive, that this involved reading in the concept of "solely" into the Regulations, and that accordingly if the reason for the less favourable treatment was not just the part time status, but included some other factor, the claim was bound to fail. In that case there was evidence that the discrimination was not simply on the ground that the claimants were part timers since other similarly placed part timers in other geographical areas were treated "pro rata" to full time workers. The EAT did not in terms directly approve this submission but they appear to have agreed with it, commenting somewhat cryptically that it was a matter "of significance." The case before the Employment Tribunal.[32]The Employment Tribunal in this case had to analyse similar arguments to those run in Gibson . In particular they were faced with the question whether the "but for" or "reason why" tests were appropriate and, as in Gibson , the Council submitted that in any event the decision was not solely because of part time status because there were other part timers who were not less favourably treated (for example, those part timers with benefits pro rata to full timers.) Rather it was because this particular group had a term in their contracts which allowed the Council to reduce the hours without thereby causing any breach.[33]The Tribunal considered themselves bound by the Gibson test and concluded both that they should apply the "reason why" test and, perhaps more significantly, that any discrimination had to be solely on the grounds of part time status:
" On the grounds that the worker is part-time "
We have cited the relevant authorities above and particularly rely on Gibson which is a case specific to the 2000 regulations and which specifically approves in this context the subjective test in Khan (described by the original tribunal as importing by reason that into the analysis of on the grounds of), although we would otherwise have distinguished Khan and Derbyshire on the basis they were victimisation cases which as we have opined above involves different wording and different causative analysis. We understand from Gibson that the claimants part time status must be the reason for the treatment and not part-time plus another matter. We have noted above the difference with race and sex discrimination. Whilst this case is not on all fours with Gibson it does have similar elements in that the reason the claimants hours were cut was because they had a particular type of part time contract that allowed it. The other 2 types – pro rata and fractionalised did not allow for it. Gibson was different in that there was no connection between the part time status with the overriding factor – geographical demands. We have considered and have much sympathy for the claimants' argument that as no full-timer had this in their contract, and it was only part timers who did, the detrimental treatment is on the ground of the worker being part time. However, Gibson does adopt the sole reason test and we are bound by that. On that basis we find that, following Gibson as it applies the authorities, that the treatment was not on the ground that the lecturers were part time per se but that they were a particular type of part-timer. Insofar as the respondent argued that part-timers were not intentionally targeted in the sense of for example Ms Eyres being prejudiced against part-timers, we find this is putting the Khan test too highly. However if that was the correct test we find this was not the case." ... italics added.)[34]Mr McCluggage of counsel, who ably represented the Council in this appeal, submitted that the better reading of this provision is that the Tribunal was simply finding against the claimant by applying the Khan test and that they were not influenced by the "sole reason" issue at all. We do not agree; in our judgment the words we have italicised make it plain that the adoption of the "sole reason" test was decisive in this case. We consider the appeal on that basis. The arguments on appeal.[35]Miss Sharma, who represented the claimants with conspicuous ability, albeit that she is not a lawyer, contended that the finding of the Tribunal was simply unsustainable in law. Her case was put on two bases.[36]First, it was submitted that the introduction of Appendix 10 was of itself an unlawful term because it discriminated against part timers and the Tribunal had found that it was not justified. She contended that once that was established then the implementation of that term, by actually reducing hours in accordance with the flexibility given by that term, necessarily involved a breach of the Regulations.[37]Second, she submitted that in the context of these Regulations at least, the Tribunal ought to have adopted the "but for" test, in which case it is plain that but for the claimants being part timers, they could not have been treated in this way. This was linked to a submission that in any event, whichever test was adopted, there was no valid distinction between differentiating on the basis of part time status and on the basis of a term which was exclusively applied by the employer to those who had that status. In either case it was discrimination on the grounds of being a part time worker. The intentions of Ms Eyres were therefore irrelevant. (in any event, Ms Sharma submitted that Ms Eyres was merely implementing the "best fit" policy fixed by others, and not determining it herself. So her personal intentions could not be material.) The first ground.[38]Mr McCluggage realistically conceded, with respect to the first ground, that if the term in Appendix 10 became unlawfully discriminatory once the Regulations were introduced, then its implementation would necessarily be unlawful; an unlawful term could not then be exercised consistently with the Regulations. However, he submits that this ground of appeal cannot succeed for two reasons.[39]First, he submits that the Tribunal did not expressly deal with the claim in this way, and the case was not advanced before the Tribunal on this basis. Hence the reason why one looks in vain for any analysis of this point in the Tribunal's reasons.[40]Second, he says that the premise of the argument is false. Regulation 5(1) does not allow an employee to challenge a less favourable term itself. The part timer can only complain about treatment which is less favourable; Mr McCluggage submits that the mere existence of a less favourable term which has not, however, been implemented in any way does not constitute less favourable treatment.[41]We reject both these submissions. As to the first, we are satisfied that, as Ms Sharma points out, the status of Appendix 10 was plainly raised in the original claim. The very first paragraph of the amended ET1 states:
"The claimants contend that they are treated unfavourably in respect of their contractual terms and conditions of employment in comparison to equivalent full-time workers solely by reason that they are part time workers."
[42]Other paragraphs are to similar effect (see eg paras 25-28). We are willing to accept that this particular way of putting the case may not have received much, if any, emphasis in the submissions before the Tribunal, and that this explains the failure of the Tribunal expressly to deal with it. It seems that the contours of the case changed during the course of the hearing. But even if the point was not directly argued below, we have no doubt this is one of those cases where we should give leave to allow the point to be argued here. It is a pure point of law and does not depend upon any further findings of fact, as Mr McCluggage properly concedes. Moreover, the claimants were not legally represented below, and the point was certainly not abandoned. In our view this is classically a case where justice requires the issue to be determined before us.[43]In our judgment, the Tribunal made clear findings of fact which could only lead to the conclusion that the existence of the term in Appendix 10 infringed the Regulations. They commented (para 44) that "the Respondent's conceded that the existence and application of Appendix 10 was less favourable treatment" (emphasis added). They also, when considering the issue of justification, considered separately the implementation of Appendix 10 and the existence of it, and considered that it was unjustified.[44]The only conceivable basis on which it could be argued that it did not breach the Regulations is if it can be said that since Appendix 10 was not applied to all part timers, it could not be said to have been adopted solely because the group were part timers. It was because they were part timers of a particular category. We return to consider that point below.[45]As to the second argument advanced by Mr McCluggage with respect to this first ground, it seems to us clear that it is open to a part timer to challenge the terms of the contract whether or not they have had any immediate practical impact upon him or her. We have no doubt that a person is being treated less favourably "as regards the terms of his contract" if those contractual terms are less favourable. A part time worker does not have to wait until that term is triggered to his detriment before he can commence proceedings.[46]In our view the Regulations themselves make this abundantly clear in numerous ways. First, a claim can be made where there is either less favourable treatment or a detriment (regulations 5 and 7(2) respectively.) Second, Regulation 8(4) (a) provides that "where a term in a contract is less favourable, that treatment shall be treated…as taking place on each day of the period during which the term is less favourable." Finally, one of the remedies available is to declare the rights of the claimant. That is plainly appropriate where less favourable terms have been imposed but not yet implemented. The "sole reason" issue.[47]As we have said, the Tribunal apparently considered that it was bound by the decision in Gibson v Scottish Ambulance Service to conclude that the part time nature of the worker's status had to be the sole reason for the discriminatory treatment. We have no doubt that this is not a legitimate construction of the Regulations, and in Gibson itself the EAT hardly gave a ringing endorsement of the construction.[48]In our judgment, the reference to "solely" in the European Directive is simply intending to focus upon the fact that the discrimination against a part timer must be because he or she is a part timer and not for some other independent reason.[49]To take a simple example, if the employer decided to discriminate against all part timers over the age of 30 it could be said that there were two reasons for the discrimination; being a part timer, and being of a certain age. Similarly if the employer deliberately discriminates against all his part timers in factory A but not those with identical full time comparators in factory B. Can it really be said that because only some part timers are selected for the less favourable treatment, the Directive (and by extension the Regulations) are not intended to be applicable?[50]In our judgment it is inconceivable that the Directive was not intended to outlaw such treatment (subject to justification) and we have no doubt whatsoever that it would inevitably be construed by the ECJ to do so. Any other conclusion would wholly undermine the very purpose of the Directive. The fact that not all part timers are treated adversely does not mean that those who are cannot take proceedings for discrimination if being part time is a reason for their adverse treatment.[51]In our judgment, once it is found that the part timer is treated less favourably than a comparator full timer and being part time is one of the reasons, that will suffice to trigger the Regulations.[52]It follows that there is no defence along the lines that Appendix 10 was applied only to some but not all part timers. The appeal must therefore succeed on this point alone. In any event, as we indicate below, we think it is wrong to characterise the discrimination here as being for more than one reason. Properly analysed, it was only because the claimants were part timers.[53]We would add that in any event, it is open to a member state to give more favourable protection than the Directive affords, and accordingly in our judgment there is no need to read limitations in the Directive into the Regulations. In this connection it is to be noted that the Regulations were made under section 19 of the Employment Relations Act 1999 , which confers a broad enabling power not just limited to implementing the terms of the Directive. The second ground.[54]It is not necessary for us to consider the second ground, which is whether the Tribunal ought in the circumstances of this case to have applied the "but for" rather than the "reason why" test. That raises interesting and difficult issues of causation which we need not explore.[55]We are satisfied that Ms Sharma is correct in her alternative submission, namely that whichever test is applied, it cannot be legitimate for the employers to contend in this case that there is a separate reason which is independent of the part-time status. The Council's case is that the reason for the less favourable treatment was the fact that these claimants had a term in their contracts which permitted flexibility and this term was not found in the contracts of the full timer comparators. So, says the Council, whilst it is undoubtedly the case that the claimants would not have suffered this treatment but for their part time status, it was not by reason of the fact that they were part timers that they were treated in this way.[56]We find this wholly artificial in the circumstances of this case. It was the employers who determined that Appendix 10 should apply to this group of part timers in the first place. It is not a characteristic which is attached to them wholly independently of the employer (as was the case in James v Eastleigh where the Council wanted to allow those who had achieved pensionable age into their swimming pool free, and it was the state, rather than the employer, which had stipulated different pension ages for men and women.)[57]It would make a nonsense of the protection afforded to part timers if the employer could successfully allege that differentiating between them and full timers on the basis of the terms exclusively attributed to them was not discriminating against them on the basis that they were part time. Take the case of an employer who does not give sick pay to part timers but does to comparable full timers. He would surely not be allowed to say that the basis of the distinction is the term of the contract, the part timer not having the right to sick pay when the full timer does. Of course, in principle the different treatment may be justifiable, but if the Council were correct in this argument, it would mean that the Regulations would not be engaged at all and the issue of justification would not even arise.[58]In our judgment, therefore, this ground succeeds also. Where the reason for the distinction is the existence of the very term which is alleged to be the source of the less favourable treatment, and that term is exclusive to the group of part timers, there is prima facie discrimination against the part timers, by which we mean unlawful discrimination unless the treatment can be justified. Moreover, we think it is properly characterised as discrimination directed against them solely by reason of the fact that they are part timers and not just partly for that reason. Such differential treatment could not be justified in this case and was therefore unlawful. (We also agree with Ms Sharma that the subjective intention of Ms Eyres – namely, the fact that she, personally, had no malice towards part timers or intention to treat them less favourably - is wholly irrelevant here, and that would be so even had she determined the policy.) Disposal .[59]The appeal succeeds with respect to the established part time workers. We find that there was a breach of the Regulations and the Tribunal will now have to deal with the question of remedies.[60]There was one fractional worker who was also a claimant. The Tribunal do not appear to have dealt specifically with her case. In fairness to them, we suspect that it her particular situation not highlighted in the arguments. Ms Sharma submits that the fractional case stands or falls with the established workers.[61]Mr McCluggage disagrees and submits that there are potentially material differences between the two cases. We think that he may be right, and in any event he should be allowed to try and persuade the Employment Tribunal that he is right.[62]Accordingly, we remit that aspect of the case to the same Tribunal. It will be for them to decide whether they would be assisted by, or ought to give the parties the opportunity to call further evidence, or whether they are content to hear submissions only.