Mathews & Ors v Kent & Medway Towns Fire Authority & Ors

For the purpose of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the categories of workers treated as employed under different types of contract are mutually exclusive. The residual category in regulation 2(3)(f) cannot remove a worker who falls within regulation 2(3)(a)–(e). A retained firefighter employed under neither a fixed-term nor apprenticeship contract therefore falls within category (a). In deciding whether workers perform the same or broadly similar work, an Employment Tribunal need not identify a single core obligation first. It may assess the whole job, including additional functions, qualifications, skills, experience, recruitment and promotion. Appellate interference for perversity requires an overwhelming case showing that no reasonable tribunal could have reached the decision.

Twelve retained firefighters brought a test case against Kent and Medway Towns Fire Authority and the Royal Berkshire Fire and Rescue Service, with the Secretary of State for the Home Department also joined. They alleged less favourable treatment compared with full-time firefighters in pension access, additional-responsibility pay and sick pay.

The Employment Tribunal dismissed the claims, finding that the two groups were employed under different types of contract and, alternatively, were not engaged in the same or broadly similar work. The Employment Appeal Tribunal dismissed the appeals. The Court of Appeal considered whether retained firefighters fell within regulation 2(3)(f), and whether the Tribunal had erred in its approach to work comparability and perversity.

Appeal dismissed unanimously. The appellants succeeded on the construction issue, but failed on the separate issue of work comparability. The cross-appeal concerning less favourable treatment under regulation 5 therefore did not arise.

1. Under regulation 2(3), categories (a) to (f) are mutually exclusive. Category (f) is confined to other descriptions of worker who do not fall within categories (a) to (e). It cannot be used to remove a worker from an existing category merely because it is reasonable for the employer to treat the worker differently.
2. Retained firefighters were employed under contracts neither for a fixed term nor of apprenticeship. They therefore fell within category (a), like full-time firefighters. Longmore LJ agreed, emphasising that category (f) was directed to objectively different contractual arrangements outside categories (a) to (e), rather than an employer's unilateral choice about comparability. Jonathan Parker LJ agreed with both judgments.
3. There was no mandatory requirement to identify the core obligation before assessing whether work was the same or broadly similar. The Employment Tribunal was entitled to consider the whole job. It could take account of measurable additional educational, preventive and administrative functions, together with differences in qualifications, skills, recruitment procedures and promotion prospects. Those matters justified the finding that the full-time role was fuller and wider.
4. On perversity, the approach in Yeboah v Crofton [2002] EWCA Civ 794 required an overwhelming case showing that no reasonable tribunal, properly applying the evidence and law, could have reached the decision. Even grave doubts required great care. The Employment Tribunal had applied the law and reached a conclusion open to it, so no question of law arose merely because another tribunal might have decided differently.
5. The appeal was dismissed. The appellants were ordered to pay two-thirds of the respondents' costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 844 , dismissed the appeal. The appellants succeeded on the construction of regulation 2(3)(f), but failed on the issue of same or broadly similar work.
• Employment Appeal Tribunal — Dismissed the appeals in a judgment handed down on 7 August 2003 and revised on 18 August 2003.
• Employment Tribunal — In a decision dated 22 July 2002, dismissed the claims on the different-contract-type ground and, alternatively, on the work-comparability ground.