Hudson v University of Oxford

At the strike-out stage, a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 should proceed where its success depends on disputed, fact-sensitive questions and the pleaded case gives a realistic rather than fanciful prospect. Where an employee works under two part-time contracts whose duties are closely related in practice, it is arguable that the contracts may be considered together. The comparison may be between the employee performing the combined work and a full-time worker performing the same work. It is also arguable that the employee remains a part-time worker for the statutory purpose and that less favourable treatment may be on the ground of part-time status. Those issues should not be finally determined without evidence.

Mr Hudson, a former University of Oxford employee, worked under two concurrent 50 per cent contracts: one as a non-academic technician and one as an academic-related information technology officer. He claimed that the contracts represented one full-time job and that, under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, he had received less favourable treatment than comparable full-time workers.

The Employment Tribunal struck out the claim on 19 July 2005. The Employment Appeal Tribunal upheld that decision on 22 June 2006, reasoning that the alleged disadvantage arose from the type of contract rather than part-time status. The central issue before the Court of Appeal was whether the pleaded factual case gave the claim a realistic prospect of success.

Appeal allowed and claim remitted to the Employment Tribunal.

1. The strike-out power under Rule 18 of Schedule 1 to the Employment Tribunals (Constitution etc) Regulations 2004 may be used where a claim has no reasonable prospect of success. A reasonable prospect is one that is realistic rather than fanciful, as stated in Balamoody v United Kingdom Central Council of Nursing [2002] IRLR 288. The court also recognised the need for particular caution in fact-sensitive claims, reflecting Anyanwu v South Bank Students’ Union [2001] UKHL 14. It was unnecessary to await the forthcoming appeal in Ezsias v North Glamorgan NHS Trust [2006] UKEAT 705.
2. The Employment Tribunal and Employment Appeal Tribunal had adopted a schematic analysis based on factual assumptions which might prove incorrect. The pleaded case was that the two contracts were intertwined and that the employee was in reality performing one full-time role. If that evidence were accepted, the prospect of success was not fanciful.
3. It was arguable that the alleged reality of one full-time job did not necessarily prevent the employee from being a part-time worker under Regulation 2(2). It was also arguable that, under the non-academic contract, he had been treated less favourably than relevant full-time comparators and that the treatment was on the ground that he was contractually a part-time worker.
4. Lord Justice Toulson considered that, where duties under two contracts were so closely related that they could not readily be allocated to one contract, both contracts might need to be considered together for the Regulation 5 comparison. Sir Anthony Clarke, Master of the Rolls, likewise regarded comparison between the combined part-time role and a full-time worker doing both jobs as arguable. The court deliberately left the substantive issue open.
5. The matter was remitted to the Employment Tribunal. The Court of Appeal expressed no view on the eventual merits.

• Court of Appeal (Civil Division): allowed the appeal and remitted the claim to the Employment Tribunal.
• Employment Appeal Tribunal: on 22 June 2006, upheld the strike-out, for reasons differing slightly from those of the Employment Tribunal.
• Employment Tribunal: on 19 July 2005, struck out the Part-Time Workers Regulations claim for having no reasonable prospect of success.