Veitch Penny LLP - Exeter | Crediton, Devon

Case

Gibson v Scottish Ambulance Service
Employment Appeal Tribunal - (16 December 2004)

Issues

(1) Contract of Employment
(2)Hours of employment
(3)Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000

Facts

Mr Gibson was employed by the Scottish Ambulance Service on a part-time basis. He was based at Lairg. He complained to the Employment Tribunal that the number of stand-by hours he was required to keep was disproportionate to those of a full-time worker. He compared himself to a full time worker based at Wick. It was agreed that he had suffered a detriment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”). The Tribunal had to then consider the reason for the treatment. At the first instance Mr Gibson was unsuccessful and he accordingly appealed to the Employment Tribunal.

Decision

As the issue of whether a detriment had occurred was not an issue, the Employment Appeal Tribunal (EAT) had to consider whether the less favourable treatment Mr Gibson received was on the grounds that he was a part-time worker and if so, if that treatment was justified on objective grounds.

The EAT re-considered the “but for” test. It concluded that if it adopted this test, it would be found that Mr Gibson had been discriminated against. However, upon listening to the arguments made by the respective parties, the EAT preferred the subjective approach and said that the proper question was “is the requirement for Gibson to work the higher ratio of standby to rostered hours than his full-time comparator by reason that he is a part-time worker?”

Upon reviewing the evidence, the EAT was satisfied that the way the service was provided was based on demand and accordingly the sole reason for Mr Gibson’s treatment was not due to his part-time status.

Comments

This test means that the reason or motivation for the difference in treatment has to be determined to ascertain where the part-time worker has been treated unequally. In this case the real reason for the difference in hours was related to an issue of demand in the local area and not because he was a part-time worker.

Interestingly, the EAT gave support to the original Tribunal’s analysis that the “sole” reason for the less favourable treatment must be because of the worker’s part-time status for a claim to succeed. If this is followed in subsequent cases, it provides a further restriction to the protection offered by the Regulations to employees.