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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Nimmo Smith
Lord EassieLord Mackay of Drumadoon
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[2007] CSIH 25XA91/06 OPINION OF THE COURT d in APPEAL Under section 37(1) of the
Employment Tribunals Act 1996 by WILLIAM JOHN McMENEMY Appellant; against CAPITA BUSINESS SERVICES
LIMITED Respondents: _______ |
Act: Stevenson, Solicitor
Advocate; Thompsons, (Appellant)
Alt: Napier, Q.C.;
Brodies, LLP (Respondents)
30 March 2007
Introduction
[1] The appellant
was a part-time employee of the respondents.
He claimed that he was suffering detriment in the manner in which the
respondents applied the provisions of his contract of employment relating to
the incidence of public holidays. He
applied to the Employment Tribunal under the provisions of the Part-Time
Workers (Prevention of Less Favourable Treatment) Regulations 2000
(S.I.2000/1551) ("the 2000 Regulations").
By a judgment registered with extended reasons on
The legislation
[2] Council
Directive 97/81/EC, concerning the Framework Agreement on part-time work ("the
Directive"), provides by Clause 1 of the Framework Agreement:-
"The purpose of this Framework Agreement
is: (a) to provide for the removal of discrimination against part-time workers
and to improve the quality of part-time work; ...."
Clause 3 provides the following definitions:-
"1. The
term 'part-time worker' refers to an employee whose normal hours of work,
calculated on a weekly basis or on average over a period of employment of up to
one year, are less than the normal hours of work of a comparable full-time
worker.
2. 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."
The principle of non-discrimination is set out in
Clause 4 in these terms:
"1. 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 unless different treatment is justified on objective grounds.
2. Where
appropriate, the principle of pro rata
temporis shall apply...."
[3] There was
some discussion before us of the significance of the word "solely" in
Clause 4.1. Reference was made to
versions of the Directive in a number of other languages. It is sufficient to refer to the French ("au seul motif") and German ("nur deswegen") versions to reinforce the
impression that would be gained from a straightforward reading of the English
version that "solely" does indeed mean that the less favourable treatment of
part-time workers which is prohibited by the Directive must be for the reason
that they work part-time and for that reason alone.
[4] The Directive
was extended to the
"(1) A
worker is a full-time worker for the purpose of these Regulations if he is paid
wholly or in part by reference to the time he works and, having regard to the
custom and practice of the employer in relation to workers employed by the
worker's employer under the same type of contract, is identifiable as a
full-time worker.
(2) A
worker is a part-time worker for the purpose of these Regulations if he is paid
wholly or in part by reference to the time he works and, having regard to the
custom and practice of the employer in relation to workers employed by the
worker's employer under the same type of contract, is not identifiable as a
full-time worker.
.....
(4) 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; ...."
Regulation 5 provides:-
"(1) A
part-time worker has the right not to be treated by his employer less
favourably than the employer treats a comparable full-time worker - (a) as
regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure
to act, of his employer.
(2) The
right conferred by paragraph (1) applies only if - (a) the treatment is on the
ground that the worker is a part-time worker, and (b) the treatment is not
justified on objective grounds.
(3) In
determining whether a part-time worker has been treated less favourably than a
comparable full-time worker the pro rata
principle shall be applied unless it is inappropriate. ...."
Regulation 8(1) enables a worker to present a complaint
to an Employment Tribunal that his employer has infringed a right conferred on
him by inter alia Regulation 5.
[5] At the
hearing of this appeal, parties were agreed on the approach to construction of
this legislation. The 2000 Regulations
should be construed consistently with the Directive, and should be given a purposive
construction. Reference was made to the
decision of the European Court of Justice in Wippel v Peek & Cloppenburg
GmbH & Co KG, Case
C-313/02 [2004] ECR I-9483, [2005] IRLR 211. In the course of their judgment the Court
said, at paragraph 54:
"[C]lause 4 of the Framework Agreement
annexed to Directive 97/81, in regard to employment conditions, precludes
part-time workers from being treated less favourably than comparable full-time
workers on the sole ground that they work part-time unless different treatment
is warranted on objective grounds".
At paragraph 55 the Court referred to Articles 2(1) and 5(1)
of Directive 76/207 and case law relating to indirect discrimination
against women. At paragraph 56 they
said:
"The prohibition on discrimination
enunciated in the abovementioned provisions is merely a particular expression
of a fundamental principle of Community law, namely the general principle of
equality under which comparable situations may not be treated differently
unless the difference is objectively justified .... That principle can therefore apply only to
persons in comparable situations ...."
Reference was also made to Litster v Forth Dry Dock
& Engineering Co Ltd 1989 SC (HL) 96, in which the House of Lords
held that United Kingdom courts are under a duty to give a purposive
construction to Directives and to Regulations issued for the purpose of
complying with Directives, and Webb v
Emo Air Cargo (UK) Ltd [1993]
1 ICR 175, in which Lord Keith said at page 186:
"[I]t is for a United Kingdom court
to construe domestic legislation in any field covered by a Community Directive
so as to accord with the interpretation of the Directive as laid down by the
European Court of Justice, if that can be done without distorting the meaning
of the domestic legislation ..."
This is consistent with the approach laid down by the
European Court of Justice in Paola Faccini
Dori v Recreb Srl, Case C-91/92 [1994]
ECR I-3325, in which the Court said at paragraph 26:
"[W]hen applying national law,
whether adopted before or after the directive, the national court that has to
interpret that law must do so, as far as possible, in the light of the wording
and the purpose of the directive so as to achieve the result it has in view and
thereby comply with the third paragraph of Article 189 of the Treaty."
[6] It was common
ground between the parties that the foregoing cases established the proper
approach construction of the legislation.
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 .
of the Directive. In our opinion, the language of Clause 4 1.
of the DirectiveThis connotes the need to consider
whether there is a causative connection between the discrimination complained of by the worker and the part-time nature of the worker's employment.: Aas we have
said, the prohibition is against less favourable treatment of part-time workers, than comparable
full-time workers,
for the reason that they work part-time and for that reason alone. This necessitates inquiry into the employer's
intention in so treating the part-time worker.
In Gibson v Scottish Ambulance Service, Appeal No.
UKEAT/0052/04,
"Whatever may be the motive of the
employer, it is necessary to look at the intention behind the decision to
impose part-time working, whatever may be its consequence in other respects. We therefore reject the 'but for' test in
this context and we consider that for the reasons given by the Tribunal, they
applied their minds to the right question and reached a conclusion, namely,
that the real reason was the issue of demand in the local area which means that
the appellant was not being discriminated against on the ground that he was a
part-time worker per se."
We agree with this approach.
The part-time worker who complains that his employer is treating him
less favourably than he does a comparable full-time worker in breach of the
legislation must therefore establish that the employer intends to treat him
less favourably on the sole ground that he is a part-time worker (see the
passage in Wippel quoted above). Additional reasons for construing the word
"solely" in this way are that, as counsel for the respondents pointed out,
there is, firstly, no reference in the Directive to indirect discrimination
and, secondly, different treatment, if established, may nevertheless be
"justified on objective grounds".
The facts
[7] The
relevant facts were not in themselves in dispute. A convenient summary of them is set out in
the following passage in the judgment of the Employment Appeal Tribunal:
"[8] The
respondents are a large company. They
provide business support services throughout the
[9] The
team in which the claimant worked seems to have varied in size but was of about
8-10 full-time equivalent members. For a
period, his line manager, Mr Keeman, worked full-time Tuesday to Saturday. It was made clear to him by the respondents
in April 2004 that he was not, when working those days, entitled to days off in
lieu when he missed a Monday public holiday.
The respondents' approach was in accordance with the terms of the
contracts of employment issued by the respondents. Whether in respect of part-time or full-time
employment, clause 9 of those contracts provided that employees were entitled
to public holidays only: '...where these fall on your normal working day ...'."
[8] The issue
between the parties was whether, on these facts as properly understood, the
appellant had established a contravention of the legislation as interpreted
above. This raised two questions: first, whether he was treated less favourably
than a comparable full-time worker; and,
secondly, if so, whether that was for the reason that he worked part-time and
for that reason alone.
The judgment of the
Employment Tribunal
[9] The appellant
claimed that he was being treated less favourably than comparable full-time
workers as he did not receive the benefit of public holidays which fell on
Mondays. In holding that there had been
no contravention of the legislation, the Employment Tribunal had regard to the
respondents' policy document on public holidays and said, at para.20:
"The whole basis of the policy both
in relation to full-time and part-time employees makes it clear that in the
interests of overall fairness to the whole workforce, the benefits of statutory
holidays will only apply to those who work them. The distinction therefore is not between
full-time and part-time workers, but between those who work Mondays and those
who do not, whether or not they are full-time.
This would have been clearer there if there had been such a full-time
employee; but the manner in which the
case of Mr Keeman was dealt with leaves us in no doubt that had such a
hypothetical employee existed, he or she would not have had the benefit of
statutory holidays".
The judgment of the
Employment Appeal Tribunal
[10] The Employment Appeal Tribunal upheld
the decision of the Employment Tribunal.
In the course of their judgment they said:
"[16] We
are readily satisfied that the conclusion reached by the Tribunal was one which
they were entitled to reach on the evidence.
They did ... consider what would have happened if, at the time they were
considering matters, one of the comparable full-time workers was not working on
Mondays. To that extent, they were
constructing a hypothetical employee.
That was, however, something that they were quite entitled to do when
considering the second question, the 'reason why' question. .... In the circumstances, it was obviously open
to them to conclude that a full-time employee who did not work on Mondays would
have been treated to the same as the claimant as regards Monday holidays. That was clearly powerful evidence in support
of the respondents' case that the reason for the claimant's treatment and the
ground on which he received it was nothing to do with his part-time
status. There was nothing wrong in them
asking themselves what would have happened if there had, at that time, been a
full-time employee in the claimant's team who did not work on Mondays.
[17] ....That
was evidence upon which it was open to the Tribunal to determine that the
ground for the respondents' decision to refuse the claimant's request for days
off in lieu of Monday holidays was not that he was a part-time worker but that he
did not work on a Monday. The Tribunal
were entitled to find that that was their reason and did so."
The Employment Appeal Tribunal also held that the appellant
did not have an independent right to pro
rata treatment as regards holidays.
They said, at para.[18], that the pro
rata principle contained in Regulation 5(3) related only to the first
question of whether or not a part-time worker had received less favourable
treatment than a full-time worker. It
was not stated as an independent right and it was not something that a Tribunal
was directed to have in mind when considering whether or not the less
favourable treatment was on the ground that the employee was a part-time
worker.
The Appeal to this
Court
Submissions for the appellant
[11] Although the
appellant has stated three grounds of appeal, we see no need to refer to them
separately. It is alleged in them that
the Employment Appeal Tribunal erred in law by failing to apply a purposive
approach to the legislation, that they misinterpreted the provisions relating
to the pro rata principle, and that
they erred in law by allowing a comparison with a hypothetical employee working
full-time but not on Mondays. In support
of these grounds, the solicitor advocate for the appellant submitted that the
important point on the facts was that the working week for the appellant's team
was a five-day fixed shift. The proper
comparison was between him and a full-time employee who worked from Monday to
Friday. The judgment of the Employment
Appeal Tribunal drove a cart and horses through the purpose of the Directive,
as the admittedly less favourable treatment of the appellant as a part-time
employee, far from being removed, was affirmed.
In contradiction of the clear legislative intention, the Employment
Appeal Tribunal had excluded the pro rata
principle from consideration of the circumstances leading to the fact of less
favourable treatment. Despite the
existence of directly comparable full-time employees, a hypothetical full-time
employee was used to defeat the principle of non-discrimination. In any event, in the circumstances of this
case, where a team comprising the appellant, who worked a part-time fixed shift
on Wednesdays, Thursdays and Fridays, and full-time comparators, who worked a
fixed shift on Mondays to Fridays, the only real ground for his less favourable
treatment was that he was a part-time worker.
Not working on Mondays was a consequence of his working part-time. Guidance provided by the Department of Trade
and Industry ("the DTI") stated:
"[W]here workers work fixed days each
week, such a practice could put part-timers at a disadvantage. For example, because most bank and public
holidays fall on Monday, those who do not work Mondays will be entitled to
proportionately fewer days off. In many
workplaces, these workers will predominantly be part-timers. In such cases, it may be necessary to remove
the disadvantage suffered by the staff who do not receive particular days off
as a result of their particular working pattern, for example by giving all
workers a pro rata entitlement of
days off in lieu according to the number of hours they work."
This reflected the proper approach to the application of the pro rata principle. In addition, it was not legitimate to
construct a hypothetical comparator.
That was only permissible where there was no actual comparator, but here
there were actual comparators, the full-time employees.
Submissions for the respondents
[12] Counsel for
the respondents submitted that the Employment Tribunal were entitled to reach
the decision they did and that there was no error of law on the part of the
Employment Appeal Tribunal. The fact
that there were comparable full-time workers who did not suffer less favourable
treatment did not of itself establish liability. The purpose of the Directive was only
contravened if it could be established that the sole reason for the less
favourable treatment was that the disadvantaged person worked part-time. Counsel submitted that it was wholly
appropriate to apply the pro rata
principle to establish the existence of less favourable treatment, but it was
wholly inappropriate to apply it to the question of causation. The Employment Appeal Tribunal correctly held
that it was not an independent right. So
far as a hypothetical comparator was concerned, it was perfectly proper to look
at evidence that went beyond the actual facts in order to establish the reason
that motivated the employer. The DTI
Guidance, which was expressed in qualified terms by use of the words "could"
and "may", was not a useful guide.
Discussion
[13] We have
already set out the relevant legislation and discussed its proper
interpretation. It was not in dispute
that the appropriate comparators were the full-time workers in the appellant's
team, who worked from Mondays to Fridays, and that by comparison with them the
appellant received less favourable treatment, because by working part-time on
Wednesdays, Thursdays and Fridays he did not receive the benefit of statutory
holidays which fell on Mondays (though he did receive the benefit of any
statutory holiday which, in a particular year, fell on a Wednesday, a Thursday
or a Friday). It is at this stage, in
considering whether there has been less favourable treatment, that the pro rata principle is applicable: if the appellant had received a pro rata amount of time off in lieu of
Monday statutory holidays, he would not be less favourably treated.
[14] The next
question is whether this less favourable treatment was solely because the
appellant was a part-time worker. This,
as we have discussed, requires examination of the respondents' intention: did they intend to treat him less favourably
for the sole reason that he was a part-time worker? It is clear to us that the Employment
Tribunal and the Employment Appeal Tribunal gave the correct answer to this
question. On examination of the facts,
the reason why the appellant received less favourable treatment than did a
comparable full-time worker was through the accident of his having agreed with
the respondents that he would not work for them on Mondays or Tuesdays. It is at this point that it becomes
legitimate to consider hypothetical situations, in order to test the true intention
of the respondents. It is clear on the
evidence that, in accordance with the respondents' policy on public holidays, if
a full-time member of the appellant's team worked a fixed shift from Tuesday to
Saturday, he would not receive the benefit of statutory holidays which fell on
Mondays. Likewise, if the appellant, or
any other part-time member of his team, worked on Mondays, they would receive
the benefit of statutory Monday holidays in exactly the same way as full-time
employees would do. We can therefore see
no reason to fault the reasoning of the Employment Tribunal or the Employment
Appeal Tribunal, especially the latter, in the passages quoted above. This is sufficient to dispose of the appeal.
[15] In these
circumstances no question arises as to whether the less favourable treatment of
the appellant is justified on objective grounds, and no submissions were
advanced in that regard.
Result
[16] For the
foregoing reasons this appeal is refused.
We would add that the solicitor advocate for the appellant invited us,
rather tentatively, to consider making a reference to the Court of Justice of
the European Communities`. In our
opinion, however, no issue of interpretation of the legislation arises which cannot
be resolved by reference to the established case law referred to above, and we
see no need to make such a reference.