Matthews and others (Appellants) v. Kent and Medway Towns and Fire Authority and others (Respondents)

For the purposes of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the contractual categories in regulation 2(3) are mutually exclusive. Regulation 2(3)(f) is a residual category and cannot remove workers from an earlier category merely because their contractual terms or working patterns differ.

Whether part-time and full-time workers perform the same or broadly similar work requires an assessment of their work as a whole. Particular weight should be given to the extent of identical work and its importance to the employer’s enterprise. Qualifications, skills and experience matter only so far as they affect the work actually performed. Additional duties or a fuller role do not by themselves preclude broad similarity.

Retained fire-fighters alleged less favourable treatment in respect of sick pay, additional-duty pay and pension entitlement when compared with whole-time fire-fighters. Their claims were brought under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The Employment Tribunal and Employment Appeal Tribunal held that the two groups neither had the same type of contract nor performed the same or broadly similar work. The Court of Appeal, in [2004] EWCA Civ 844, held that their contracts were of the same type but upheld the conclusion concerning their work.

The issues before the House were whether regulation 2(3)(f) could create a distinct contractual category notwithstanding the earlier categories, and whether the Tribunal had correctly applied the “same or broadly similar work” requirement in regulation 2(4)(a)(ii).

1. By a majority of three to two, the appeal was allowed. The case was remitted to the Employment Tribunal to reconsider whether retained and whole-time fire-fighters were engaged in the same or broadly similar work and to determine any consequential issues.

2. Per Baroness Hale of Richmond and Lord Hope of Craighead, with Lord Nicholls of Birkenhead agreeing, the categories in regulation 2(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 are mutually exclusive. Paragraph (f), referring to any “other” description of worker, is a residual provision for a category not covered by paragraphs (a) to (e). It does not permit an employer to remove workers from an earlier category because their terms, pay structures or working patterns differ. The retained and whole-time fire-fighters therefore had the same type of contract for regulation 2(4)(a)(i).

3. Per Baroness Hale and Lord Hope, the sole inquiry under regulation 2(4)(a)(ii) is whether the work, considered as a whole, is the same or broadly similar. Both similarities and differences must be assessed. Particular weight should be given to the extent of work which is exactly the same and to the importance of that work to the employer’s enterprise. A full-time worker’s additional activities do not necessarily prevent the work from being broadly similar.

4. Qualifications, skills and experience are relevant only so far as they illuminate whether the workers contribute differently to the work they actually perform. The Tribunal wrongly treated differences in those characteristics as an additional and independently adverse factor. It also concentrated on the whole-time role being fuller and wider without taking the final statutory step of deciding whether the work nevertheless remained broadly similar. Its reliance on concepts associated with the Equal Pay Act 1970 contributed to that misdirection.

5. Baroness Hale considered that less favourable treatment and objective justification will ordinarily require attention to the particular terms in issue. She did not exclude the possibility that a favourable term might balance or justify an unfavourable term in an appropriate case. That issue was left for any further proceedings.

6. Lord Carswell dissented on the broadly-similar-work issue. He considered that the Tribunal had evaluated the whole picture and reached a permissible factual conclusion. Lord Mance dissented on both principal issues, construing regulation 2(3)(f) as permitting a reasonable distinction between workers whose contracts would otherwise fall within the same earlier category.

1. House of Lords: By a majority, allowed the appeal from [2004] EWCA Civ 844, set aside the determination concerning broadly similar work and remitted that issue and any consequential matters to the Employment Tribunal.

2. Court of Appeal: Held that retained and whole-time fire-fighters were employed under the same type of contract, but upheld the conclusion that they were not engaged in the same or broadly similar work: [2004] EWCA Civ 844.

3. Employment Appeal Tribunal: Upheld the Employment Tribunal’s determination on both threshold requirements.

4. Employment Tribunal: Held that the two groups had different types of contract and were not engaged in the same or broadly similar work. It found less favourable treatment in relation to pensions, sick pay and additional-duty pay.