Veitch Penny LLP - Exeter | Crediton, Devon

Case

Matthews v Kent & Medway Towns Fire Authority
Employment Appeal Tribunal - (5 June 2003)

Issues

(1) Part-time employees
(2) Prevention of less favourable treatment
(3) Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Facts

This was a test case on behalf of 12,000 retained fire fighters. The employees were chosen from the retained fire fighters who had brought claims against the fire authorities.

The employees based their complaint upon the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. They argued they had received less favourable treatment from their employers in comparison with “whole time” fire fighters, with regard to access to the pension scheme and other pay benefits. In particular, the retained fire fighters were excluded from the Fireman’s Pension Scheme.

The Tribunal had to consider whether:
(i) The employees were employed under the “same type of contract” as their comparators;
(ii) The employees were “any other description of worker that was reasonable for the employer to treat differently on the ground that workers of that description have a different type of contract; and
(iii) The employees and comparators were engaged in the same or broadly similar work having regard, to the level of qualification, skills and experience.

The Employment Tribunal found that on the facts, the employees were not employed under the same type of contract as defined above. Consequently, the employees’ claim was unsuccessful and was dismissed. It was further held that the employees and comparators were not engaged in the same or broadly similar work.

Decision

The employees’ appeal was dismissed.

(1) The Employment Appeal Tribunal found that there had not been any error of law by the Tribunal in finding that the contract terms gave rise to special features on working pattern. The Tribunal had made it clear it had concentrated on work activities and not what happened to be included in the contract. The Tribunal also considered whether there was a different type of contract for the employees and whether it was reasonable to treat them differently.

(2) The existence of the test of reasonableness in the Regulations demonstrated that it had been intended that different treatment could be allowed if it was reasonable to treat the employees differently from other workers. Also, there were certain similarities and a large number of differences between the work of each sort of fire fighter, and a number of differences in the contracts. Consequently, there was sufficient evidence to allow the Tribunal to find that each type of fire fighters was employed under different types of contract. Therefore, it was reasonable for them to be treated differently.

(3) The Tribunal had acted on the basis of the evidence before it and on its fact finding, which in itself had been rational and compelling. There was no perversity or error of law – the appeal would be dismissed.

Comments

This decision has very important implications in relation to the ability of part-time employees to bring claims under these regulations. The decision has highlighted just how narrowly the Part-Time Workers Regulations were drafted, which must run counter to the ethos of the EU framework on which the Regulations are based.