In the second part of our series on contract management pitfalls, we look at the risks and opportunities presented by payment mechanisms in construction contracts.
The EAT held in Roddis v Sheffield Hallam University (UKEAT 0299/17) that a zero-hours employee can compare themselves to a permanent full-time employee when seeking to enforce the right not to be treated less favourably.
- as regards the terms of their contract;
- by being subjected to any other detriment by any act; or
- deliberate failure to act, by their employer.
The part-time workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTW Regulations”) provide that part-time workers can challenge less favourable treatment, which is on the ground of their part-time status, unless the employer can objectively justify the difference in treatment.
A part-time worker has the right not to be treated less favourably than a comparable full-time worker:
- in regards to the terms of their contract; or
- by being subjected to any other detriment by any act, or deliberate failure to act, by their employer.
In order to identify when less favourable treatment has occurred under the PTW Regulations, a part-time worker must identify an appropriate full-time worker comparator. The comparator must be:
- Employed by the same employer.
- Employed under the same type of contract.
- Engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience.
- Working or based at the same establishment as the part-time worker or, where no such worker satisfies the three requirements listed immediately above, working or based at a different establishment and satisfying those requirements.
The Claimant, Mr Roddis, was employed by Sheffield Hallam University (“the University”) on a zero-hours contract as an associate lecturer. He brought a claim under PTW Regulations, for less favourable treatment, seeking to compare himself to a permanent full-time lecturer. The University defended the claim on the basis that Mr Roddis, a zero-hours employee, and his comparator, a permanent full-time lecturer, were employed under a different type of contract and therefore the PTW Regulations did not apply.
The Employment Tribunal initially accepted the University’s defence and held that Mr Roddis could not compare himself to the permanent full-time lecturer. The Employment Tribunal concluded that the two individuals were not employed under the same type of contract. Mr Roddis appealed this conclusion, and the issue was considered by the Employment Appeal Tribunal (EAT).
The EAT overturned the decision of the Employment Tribunal, and held that as Mr Roddis and the permanent full-time lecturer were both employees employed under a contract of employment, Mr Roddis could use the permanent full-time lecturer as his comparator to enforce the PTW Regulations.
The EAT confirmed that whether or not a comparator is working under the same type of contract is determined by Regulation 2(3), which sets out four types of contract regarded as different to one another:
- Employees employed under a contract of employment that is not a contract of apprenticeship.
- Employees under a contract of apprenticeship.
- Workers who are not employees.
- Any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.
The EAT concluded that Mr Roddis and the permanent full-time lecturer were both employed under the first type of contract – a contract of employment. The EAT commented that provided the worker and comparator answer to the same description in one of the above categories, they are to be regarded as employed under the same type of contract. Mr Roddis has therefore now been permitted to pursue his claim for less favourable treatment under the PTW Regulations.
This case confirms that zero-hours contracts are not viewed as different types of contract, so a zero-hours employee can compare their terms with other permanent employees. This is a helpful reminder that employers need to be careful when offering different terms and conditions of employment to their zero-hours employees than they do to other permanent colleagues.
For more information
We have advised a significant number of clients, including in the social care and housing sectors, on structuring their contractual arrangements with their workforce in a way that ensures compliance. If you require assistance with your work practices, please get in touch with your usual contact in our Employment Team or speak to Anna Dabek.
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