The Points of Law Raised
The appeal raised what the judge described as "two hard-edged questions of construction" of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations"). Those were:
(1) Whether a claimant is permitted to rely on a hypothetical comparator in order to show unlawful less favourable treatment.
(2) Whether a claimant must show that the treatment was solely on the ground of part time status.
In addition the EAT considered whether the Tribunal had followed the correct approach when deciding that a particular individual was an unsuitable comparator under the Regulations.
No Hypothetical Comparators
The EAT held that the construction of the domestic Regulations was clear. They used language which adopted a model similar to that in the Equal Pay Act 1970, which required a comparison with an actual male comparator, and not a hypothetical male comparator. They did not follow direct discrimination provisions seen elsewhere where hypothetical comparators are allowed, in which there is reference to how the alleged discriminator "treats
or would treat" a comparator.
Although the EAT accepted that it was necessary to adopt the Marleasing principle of interpretation (because the Regulations are the domestic implementation of the Part Time Worker Directive 97/81/EC), it went on to hold that the Directive does not require that a hypothetical comparator is available to a part-time worker complainant.
The final part of Clause 3.2 of the Framework Agreement annexed to the Directive provides that “Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.” However, after considering a number of cases dealing with this clause, the EAT held that it did not require that the Claimant must be able to rely on a hypothetical comparator.
Causation
The EAT went on to resolve a conflict of EAT authority dealing with whether it was necessary that part time status was the sole ground for less favourable treatment. This argument had been accepted in Gibson v Scottish Ambulance Service by reference to the word 'solely' in the Directive. However in Sharma v Manchester City Council, Elias P came to a different conclusion: the reference to 'solely' in the Directive being intended to focus upon the fact that the discrimination against a part-timer must be because she is a part-timer and not for some other independent reason. To compound matters, McMenemy v Capita Business Services Ltd in the Scottish Court of Session had considered this issue but had not been cited to the EAT in Sharma.
Resolving this conflict, the EAT preferred the approach in Sharma. HHJ Peter Clark, giving judgment on behalf of the EAT, held (§42):
For our part we agree with Mr Pilgerstorfer. The expression 'on the ground that' or 'on the grounds of' frequently appears in our domestic legislation. It was considered by the Court of Appeal in English in the context of the Sexual Orientation Regulations 2003, where the majority (Sedley and Laurence Collins LJJ) read the domestic provisions consistently with the Equal Treatment Framework Directive which they were designed to implement. Laws LJ took a different view. However, we agree with the President in Sharma that whereas domestic legislation must provide the protection contained in the Directive, it is not limited to such protection. ‘On the ground that’ in reg. 5(2)(a) means what Mummery P said the similar expression in the SDA meant. Part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause.
The Approach to Alleged Real Comparators
Finally, the EAT held that the Tribunal had been entitled to find that the alleged comparator in the case, Ms McClelland, was not properly regarded as a true comparator, applying Matthews v Kent & Medway Towns Fire Authority.
HHJ Clark held (§§49-50):
In Matthews the part time fire fighters did the same work as the full-timers, they fought fires. On the facts, the similarities between the work done by the part-time and full–time fire-fighters were more important than the differences. In the present case, apart from the fact that both the Claimant and Mrs McClelland taught students at the University, the Employment Tribunal were entitled to take into account the differences in what they taught, their job specifications and how they taught.
Moreover, the differences in their respective skills, qualification and educational achievements were properly taken into account in accordance with reg. 2(4)(ii). In short, we entirely accept Ms Romney’s submission that the Employment Tribunal’s conclusion that there was no true comparison between the Claimant and Mrs McClelland was plainly permissible.
