Appeal No. UKEAT/0261/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 2009
	                    Judgment handed down on 15 May 2009

Before
HIS HONOUR JUDGE PETER CLARK
MR B BEYNON
MR T HAYWOOD

MRS B K CARL	APPELLANT

THE UNIVERSITY OF SHEFFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARCUS PILGERSTORFER
(of Counsel)
Instructed by:
University & College Union Solicitors
27 Britannia Street
London WC1X 9JP	
For the Respondent	MS DAPHNE ROMNEY
(of Counsel)
Instructed by:
Messrs Beachcroft LLP Solicitors
7 Park Square East
Leeds LS1 2LW	

SUMMARY
PART TIME WORKERS
Whether the Claimant may rely on a hypothetical comparator in a PTWR claim.  Held. No.
Whether part-time worker status must be the sole reason for less favourable treatment.  Answer No.  Sharma preferred to Gibson and McMenemy.

The Employment Tribunal was entitled to conclude that the actual comparator relied on by the Claimant was not a true comparator.  Therefore claim under PTWR was correctly dismissed by the Employment Tribunal.

HIS HONOUR JUDGE PETER CLARK
1.	This appeal raises two hard-edged questions of construction of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR).  The parties before the Sheffield Employment Tribunal were Mrs Carl, Claimant, and the University of Sheffield, Respondent.  We have before us an appeal by the Claimant and cross-appeal by the Respondent against the reserved judgment of an Employment Tribunal chaired by Employment Judge H.A. McWatt, promulgated with reasons on 11 March 2008.  The Employment Tribunal also dismissed a claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTER).  There is no appeal against that finding.

Background
2.	It is common ground between counsel appearing before us, the Claimant having acted in person below, that the Employment Tribunal’s reasons are less than a model of clarity, as Mr Pilgerstorfer put it in his helpful skeleton argument.  Ms Romney did appear below; not the ‘Mrs Rainer’ twice referred to at paragraph 4 of the Reasons.  We agree.  Our first task is to trawl through the Reasons for a coherent outline of the material facts and events relevant to our decision in the appeal.

3.	We should first record that, in view of the FTER claim, a Pre-Hearing Review took place before Employment Judge Little and members on 26-27 September 2007 to determine whether or not the Claimant was an employee of the Respondent.  By a Judgment with Reasons dated 17 October 2007 that Tribunal found that she was, contrary to the Respondent’s contention.  It follows that she was also a worker.

4.	For the purposes of the PTWR claim it is common ground that the Claimant was a part‑time worker.  She taught shorthand in the Journalism Department at the University.  She complained that she had been treated less favourably than a named comparator, Ms McClelland, who worked under a full-time University Teacher’s contract, in that her comparator was paid for preparation time and the Claimant was not.  The question was whether she was paid less pro rata than Ms McClelland, alternatively a hypothetical comparator, namely a ‘generic teacher’ on a University Teacher’s contract.

5.	First, the Employment Tribunal concluded that Ms McClelland was not a true comparator for reasons given at paragraphs 3.4 and 3.5.  We shall return to those reasons when considering the Claimant’s appeal against the finding that Ms McClelland was not a true comparator.

6.	As to the hypothetical comparator, with whom the Employment Tribunal accepted the Claimant could compare herself under PTWR (Reasons paragraph 3.5), they found that there was no less favourable treatment (paragraph 7.5).

7.	Finally, in relation to training, the Employment Tribunal concluded (paragraph 8) that any difference in treatment was not on the grounds of her part-time status.  In reaching that conclusion the Employment Tribunal directed itself in accordance with the Employment Appeal Tribunal decision in Gibson v Scottish Ambulance Service (EATS/0052/04 16 December 2004 Lord Johnston presiding) that the expression ‘on the ground that the Claimant is a part-time worker’ in reg. 5(2)(a) PTWR means solely on that ground, by reference to the Part‑Time Worker Directive 97/81/EC (the Directive) which the Regulations were passed to implement.

PTWR
8.	The two principal questions of law raised in the appeals are:
(1)	is the Claimant permitted to rely on a hypothetical comparator in order to show unlawful less favourable treatment?  
The Respondent submits not.
(2)	must the Claimant show that the treatment was solely on the ground of her part‑time status?  
Here the Claimant challenges the Employment Tribunal’s self-direction based on Gibson.

Hypothetical comparator
9.	It is well-established that in a complaint of direct sex or race discrimination a Claimant may compare the treatment which he complains is less favourable to him or her, to that afforded to an actual or hypothetical comparator.  That is plain from the statutory wording.  Section 1(1)(a) Sex Discrimination Act 1975 provides that ‘a person discriminates against a woman if – on the ground of her sex he treats her less favourably than he treats or would treat a man’.  Section 1(1)(a) Race Relations Act 1976 employs a similar expression.

10.	Conversely, in a claim brought under the Equal Pay Act 1970 the comparison must be made with an actual male comparator, not a hypothetical male.

11.	The question is which model does the PTWR follow?

12.	Regulation 2(4) defines a comparable full-time worker as follows:
 “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; and
(b)	the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.”

13.	We return to the Equal Pay Act.  Just as the PTWR is concerned with prohibiting less favourable treatment as regards the terms of a part-time worker’s contract, compared with a full-time worker, or subjecting the part-time worker to any other detriment (reg. 5(1)), so the Equal Pay Act is concerned with an equality clause in every woman’s contract of employment where the woman is employed on like work, work rated as equivalent or work of equal value to that of a man in the same establishment (s1).  Further, by s1(5B) Equal Pay Act:

“men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer in the same establishment or at establishments in Great Britain…”

14.	Thus, pausing there, unlike the provisions of s1(1)(a) Race Relations Act and Sex Discrimination Act, the definition of comparable full-time workers in reg. 2(4) PTWR does not include the ‘or would’ formula; further reg. 4(2)(b) resonates with s1(5B) Equal Pay Act.

15.	The matter would seem to be put beyond doubt, as Ms Romney submits, by the provisions of regs. 3 and 4 PTWR, which are concerned, respectively, with full-time workers switching to part-time contracts and vice-versa.  Thus, reg. 3(2) provides:

“Notwithstanding reg. 2(4), reg. 5 [right not to be less favourably treated] shall apply to a worker to whom this reg. applies as if he were a part-time worker and as if there were a comparable full-time worker employed under the terms that applied to him immediately before the variation or termination.”

16.	A similar formula appears in reg. 4(2).  Thus, it seems to us, in these two exceptional categories (only) a hypothetical comparator is permitted.

17.	Undeterred by the apparently plain effect of the PTWR, Mr Pilgerstorfer submits that applying the Marleasing principle [1990] ECR 1-4135 (ECJ), we should interpret implementing national law ‘so far as possible’ in order to achieve the result sought by the relevant Directive: see, recently English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 (CA) para. 32, per Laws LJ (dissenting).  We accept that principle.  It may be applied in due course in the associative disability discrimination case of Coleman v Atbridge Law, following the ECJ ruling in that case [2008] IRLR 722.  However, the first question is whether the Directive requires that a hypothetical comparator is available to a part-time worker complainant.

18.	In this respect Mr Pilgerstorfer focuses on Clause 3.2 of the Framework Agreement annexed to the Directive, which provides, by way of definition:

“The term’ comparable full-time worker’ means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.
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.”

19.	The first part of that definition is reflected in reg. 2(4).  The question is whether the proviso assists the Claimant in this case.

20.	We have been referred to the ECJ Judgment in Wippel v Peek & Cloppenburg GmbH & Co. KG [2005] IRLR 211.  That case does not, in our opinion, assist the Claimant since the Court found (para. 61) that no full-time worker had the same type of contract or employment relationship as Ms Wippel.  The same was also true of all the full-time workers, in respect of whom the applicable collective agreement provided for a (full-time) working week of 38.5 hours.  What is strikingly absent from the Court’s analysis, it seems to us, is any attempt to construct a hypothetical comparator in that case with whom Ms Wippel could compare herself.

21.	In McMenemy v Capita Business Services Ltd [2006] IRLR 761 (EAT), a part-time worker case, Lady Smith indicated (paragraph 14) that a hypothetical comparator was probably not apposite in a PTWR case, since there was no attempt to construct a hypothetical comparator in Wippel where the ECJ was satisfied that there had been no discrimination against the part ‑time worker.

22.	Mr Pilgerstorfer submits that the view expressed by Lady Smith in McMenemy was an oversimplification of the reasoning of the ECJ in Wippel.  We disagree.  On this aspect of McMenemy, a case to which we must return later, we entirely agree with that analysis by Lady Smith.

23.	In any event, Wippel does not take this matter any further because Mr Pilgerstorfer relies on the final part of the proviso to Clause 3.2; ‘practice’.  He cites a passage in the speech of Lord Rodger in Shamoon v Chief Constable of the R.U.C. [2003] ICR 337, paragraph 140, where his Lordship referred to an established policy or practise of the employer that involves treating women less favourably than men in virtually all circumstances.  That extract does not assist the Claimant in the present case.  Shamoon involved a claim of direct sex discrimination where a hypothetical comparator is permitted.  How a complainant in that type of case raised a prima facie case from which it could be inferred that her employer had treated her less favourably than he would have treated a man simply begs the question in this case, can Mrs Carl rely on a hypothetical comparator in her PTWR claim?  For the reasons we have endeavoured to give we are quite satisfied that she cannot.  She must rely on an actual comparator.

Causation
24.	As Lord Nicholls observed in Chief Constable of West Yorkshire Police v Khan  [2001] ICR 1065, paragraph 29 “Causation is a slippery word …” Khan was concerned with the expression ‘by reason that’ in the victimisation provision (s2) of the Race Relations Act 1976.

25.	The use of the expression ‘on the ground of’ appears in s1(1)(a) SDA and RRA, as we have earlier mentioned.  In interpreting that expression in O’Neill v St Thomas More School [1997] ICR 33, 43F, Mummery P said;

“The basic question is: what, out of the whole complex of facts before the tribunal, is the ‘effective and predominant cause’ or the ‘real or efficient cause’ of the act complained of?”

and later (43G) he added:
“The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of.  ‘It is enough if it is an effective cause:’  Banque Bruxelles Lambert SA v Eagle Star [1995] QB 375, 406 E-F (CA).”

26.	Thus in that case the Employment Appeal Tribunal held that the Claimant’s dismissal was on the ground of her pregnancy.  It need not be only on that ground.  It may not even be mainly on that ground (p47D).

27.	Regulation 5(2) PTWR provides that the right conferred by Regulation 5(1) (no less favourable treatment) applies only if –
“(a)  the treatment is on the ground that the worker is a part-time worker …”

28.	Thus, applying the approach in O’Neill, it is enough if her part-time worker status is an effective cause, albeit not the sole cause, of the less favourable treatment of which complaint is made.  However, that was not the approach taken by the Employment Tribunal.  At paragraph  3.9 of their Reasons they said:
“The Tribunal then had to consider the Reg 5(2)(c) [sic. 5(2)(a)] test – “on the grounds of” [sic. ‘on the ground that’] – reflecting the use of the word in the Framework Agreement ‘solely’.  The Tribunal is bound by the decision in Gibson v Scottish Ambulance Service – an unreported decision in 2004 in which the Court of Session [sic. EAT. Lord Johnston] held that “on the ground” was not the ‘but for’ test.  A Tribunal had to be satisfied that the reason in the mind of the employer for the difference of treatment between a part-timer and full-time worker was that the part-timer was a part-time worker.  The question simply was why did the Respondents treat the Claimant in the way they had.  If there was a discriminatory reason then the treatment was unlawful.”

29.	Mr Pilgerstorfer submits that by relying on the Employment Appeal Tribunal decision in Gibson (as we think they were bound to do) they misdirected themselves in law, so that their finding in relation to the Claimant’s ‘non-financial’ claims (Reasons, paragraph 3.13) was fatally flawed and must be set aside.

30.	In their self-direction at paragraph  3.9 the Employment Tribunal refer to the use of the word ‘solely’ in the Framework Agreement.

31.	Clause 4.1 of the Framework Agreement annexed to the Directive states:

“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 …”

32.	We have earlier set out the words of reg. 5(2)(a) PTWR.

33.	In Gibson it was submitted on behalf of the employer by Mr Brian Napier QC that the word ‘solely’ (to be found in Clause 4.1 of the Framework Agreement set out above) should be written into reg. 5(2)(a) and the Regulation should be construed against the background of the Directive (Judgment, paragraph 10).  The Employment Appeal Tribunal accepted that submission and held that it could not be said that the fact of part-time working was the sole cause of the difference in treatment of which complaint was made.

34.	Following the Employment Tribunal decision in the present case the point again arose for consideration before a division of the EAT presided over by Elias P in Sharma v Manchester City Council [2008] ICR 623.  In that case the Employment Tribunal also considered itself bound by the holding in Gibson that the ‘sole reason’ test applied (see paragraph 33).

35.	The Employment Appeal Tribunal in Sharma considered that question at paragraphs 47‑53.  The President had no doubt that this is not a legitimate construction of the Regulations (para. 47).  In his judgment, sitting with members, he considered that the reference to ‘solely’ in the Directive simply 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 (para. 48).  It is enough that the fact of being a part-timer is one of the reasons for the treatment (para. 51).  In this, it seems to us, he was following the approach of Mummery P. in O’Neill.  In any event, said the President, it is open to a member state to give more favourable protection than the Directive affords and thus the limitation which Lord Johnston’s division were persuaded to read into the Regulations was unnecessary (para. 53).  Pausing there, that observation is borne out, based on our analysis of the comparator question, by the PTWR.  Whilst there is no requirement, in our view, to provide for a hypothetical  comparator in domestic legislation  implementing the Directive, nevertheless additional protection was provided for workers changing from part-time to full-time status or the reverse by regulations 3 and 4.

36.	It follows that we are faced with a clear division of opinion at Employment Appeal Tribunal level between Gibson and Sharma.  However, the matter does not end there.  It appears that the case of McMenemy, which later went on appeal to the Inner House of the Court of Session [2007] IRLR 400, was not cited to the President in Sharma.  At all events that case is not referred to in his judgment.

37.	In McMenemy the issue was whether the Claimant was discriminated against under PTWR by virtue of a term of the contract of employment of workers at a 7 day weekly working call centre which provided that employees were entitled to public holidays only “where these fall on your normal working day”.  Mr McMenemy, who worked part-time, therefore missed out on bank holiday Mondays because his working week was Wednesday – Friday.

38.	Gibson was referred to in the judgment of Lady Smith in the Employment Appeal Tribunal (para. 11).  On the causation question, the ‘reason why’ question, the EAT concluded (para. 16) that since a full-time worker who did not work on Mondays (the Claimant’s line manager worked full-time Tuesday to Saturday) would not enjoy holidays on a Monday there was no less favourable treatment of the Claimant.

39.	On appeal we note from the judgment of Lord Nimmo Smith that the Court of Session were satisfied (para. 3) that the less favourable treatment of part-time workers must, under the Directive, be for the reason that they work part-time and for that reason alone.  Further, and we think significantly, it was common ground between the parties (para. 5) that the Regulations should be construed consistently with the Directive and should be given a purposive approach. 

Reference is then made to Wippel and in particular paragraph 54 of the ECJ Judgment where it is said:
“Clause 4 … precludes part time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part time …”

40.	Indeed , at paragraph 6, Lord Nimmo Smith records:

“It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers or were intended to do more than to bring United Kingdom law into line with Community law.”

Gibson was cited to the Court (Mr Napier again appeared for the employer on this occasion) and approved.

41.	Before us Mr Pilgerstorfer does not make the same generous concession recorded by the Court of Session in McMenemy.  He invites us to follow the President’s judgment in Sharma.

42.	We are not strictly bound by any of the previous cases; even by the Court of Session.  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 Appeals
43.	It follows that in our opinion, in order to succeed in the present claim, the Claimant must show that she has been less favourably treated than an actual full-time comparator on the ground that (but not solely because) she is a part-time worker before the Respondent is required to show that the treatment is objectively justified (reg. 5(2)(b)).

44.	As we have earlier said, the Employment Tribunal found that Ms McClelland, the actual comparator relied on by the Claimant, was not a true comparator.

45.	Ms McClelland was a full-time teacher in the sociological studies department on Grade 8.  The Employment Tribunal had in mind the definition of comparable full-time worker in reg. 2(4) (transposed as Reg 4(2) in paragraph 3.4 of their Reasons).  They accepted the Respondent’s case that Ms McClelland’s role was not even broadly similar to that of the Claimant.  Ms McClelland’s contribution was both vocational and academic: the Claimant’s teaching was purely vocational.  Ms McClelland had two MAs, was preparing for a PhD degree and had skills ‘way beyond’ that of the Claimant in terms of her practice and experience as a social worker for 15 years.  The Claimant had a B.Ed (teaching) and many years business experience in her skills.   The Claimant taught to NVQ3 (A level) standard;  Ms McClelland up to PhD level.

46.	Even accepting that the two roles are inevitably different to some extent the Tribunal had ‘no difficulty in concluding that Ms McClelland’s qualification/skills and experience were necessary to her to perform her role and that the scope of her qualifications/skills and experience put her well beyond any comparison with the Claimant’ (Reasons paragraph  3.5).  The Employment Tribunal directed themselves in accordance with Matthews v Kent & Medway Towns Fire Authority [2006] IRLR 367 (HL).

47.	In her appeal the Claimant challenges the Employment Tribunal’s finding that Ms McClelland was not an actual comparator for the purposes of PTWR.

48.	Mr Pilgerstorfer submits that, contrary to the reasoning of the majority in Matthews, the Employment Tribunal fell into error by concentrating on the differences between the Claimant and Ms McClelland rather than the similarities between them.

49.	On this aspect of the case we prefer the submission of Ms Romney.  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 Ms 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.

50.	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 Ms McClelland was plainly permissible.

Disposal
51.	It follows, in our judgment, that this claim fails in the absence of a true actual full-time comparator.   There is no more to be said.  The Claimant’s appeal necessarily fails in the result and the Respondent’s cross-appeal succeeds to the extent that, contrary to the Employment Tribunal’s finding, we hold that the Claimant cannot rely on a hypothetical comparator under PTWR.  It also follows that it is unnecessary for us to consider the effect of the Employment Tribunal’s misdirection on the causation issue.