Matthews & Ors v. Kent and Medway Towns Fire Authority & Ors

The appellants were retained (part-time) fire-fighters who claimed less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR). The key legal issues were (i) whether retained and whole-time fire-fighters were employed "under the same type of contract" for the purpose of regulation 2(4)(a)(i) and (ii) whether they were engaged in "the same or broadly similar work" for the purpose of regulation 2(4)(a)(ii). The House held that paragraph (f) of regulation 2(3) is a residual category and did not operate to place retained fire-fighters outside the same contractual type as whole-time fire-fighters; consequently the first limb of regulation 2(4)(a) was satisfied. The tribunal’s reasoning on the second limb was defective because it gave insufficient weight to the extent to which the core firefighting work was the same and misdirected itself about the relevance of differences in qualifications and skills; that part of the tribunal’s decision was set aside and the matter was remitted to the Employment Tribunal for reconsideration. The court also addressed the proper approach under regulation 5 to less favourable treatment and objective justification.

This appeal arises from test claims by retained fire-fighters that their terms and conditions were less favourable than those of whole-time fire-fighters, contrary to the PTWR. The claimants sought a comparison with whole-time counterparts, relying on regulation 5 (right not to be treated less favourably) and the definition of a "comparable full-time worker" in regulation 2(4).

The appeal raised two principal issues:

• Same type of contract (regulation 2(4)(a)(i)) — whether the residual paragraph (f) in regulation 2(3) meant an employer could treat a group who otherwise fell within paragraph (a) as a different type of contract simply because it was reasonable to do so;
• Same or broadly similar work (regulation 2(4)(a)(ii)) — whether the retained and whole-time fire-fighters were engaged in the same or broadly similar work, having regard to qualifications, skills and experience.

The House interpreted paragraph (f) of regulation 2(3) as a residual category intended to catch genuinely different descriptions of workers not covered by (a)–(e), rather than an employer-facing carve-out permitting employers to decide who falls outside the ordinary categories. On that construction, retained and whole-time fire-fighters fell within the same contractual type. On the second issue the Employment Tribunal had found measurable differences (e.g. non-occurrence duties, entry and training requirements, promotion ceilings and pension treatment) and concluded the work was not "the same or broadly similar". The House majority held that the tribunal had focused disproportionately on differences and had failed to assess properly the significance of the central and identical firefighting functions; accordingly that aspect of the decision was defective and was remitted for reconsideration. The court also discussed the approach to regulation 5, saying that less favourable treatment and objective justification can be assessed term by term or overall, depending on the case, but remitted this factual assessment to the tribunal.

Appeal allowed. The House held that regulation 2(3)(f) is a residual description and does not permit an employer to treat as a different type of contract persons who fall within the earlier categories; retained and whole-time fire-fighters are therefore of the same type of contract for the purposes of regulation 2(4)(a)(i). The Employment Tribunal’s reasoning on whether the workers were "engaged in the same or broadly similar work" under regulation 2(4)(a)(ii) was defective for failing sufficiently to weigh the centrality and extent of identical firefighting duties and for misdirecting itself about the effect of differences in qualification and skills; that part of its decision was set aside and the case remitted for reconsideration. Concise rationale: purposive construction of the PTWR and Framework Agreement, paragraph (f) treated as residual, and the tribunal required to reassess comparability focusing on the statutory test rather than on an Equal Pay Act style analysis.

Appeal to the House of Lords from the Court of Appeal ([2004] EWCA Civ 844). The claim originated in the Employment Tribunal (decisions dated 22 July 2002), considered on appeal by the Employment Appeal Tribunal and then by the Court of Appeal before coming to the House.