Manchester College v Cocliff

Claims under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 require a staged analysis. The tribunal must first determine whether the less favourable treatment was on the ground that the claimant was a fixed-term employee. Only then does the question of objective justification arise. A finding that the treatment was not objectively justified cannot itself establish the reason for it. Further, differences between the claimant’s role and the comparator’s role may provide objective justification even where the work is broadly similar. The appeal was therefore allowed and the claim remitted for rehearing.

Mr Cocliff, a part-time sessional lecturer employed on successive fixed-term contracts, claimed that six contractual terms were less favourable than those of a comparable permanent lecturer. The Employment Tribunal found the work broadly similar, rejected the employer’s justification based on differences in role, and concluded that the less favourable treatment was because Mr Cocliff was a fixed-term employee.

The College appealed, contending that the tribunal had considered objective justification before identifying the reason for the treatment and had wrongly treated broadly similar work as preventing justification. The central issues were the correct sequence of analysis and whether differences in roles could justify less favourable contractual terms.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside and the case was remitted to a differently constituted Employment Tribunal for rehearing.
2. The Regulations require a stepped approach. After determining whether the claimant and comparator perform the same or broadly similar work, the tribunal must determine whether the less favourable treatment was on the ground that the claimant was a fixed-term employee. Only if that question is answered affirmatively must it decide whether the treatment was objectively justified.
3. The Tribunal erred by deciding that the treatment was not objectively justified and then inferring that the reason for it was the claimant’s fixed-term status. The absence of objective justification does not establish the reason for the less favourable treatment. The Tribunal had to consider whether the difference arose from fixed-term status, part-time or sessional status, or another reason.
4. The Tribunal also erred in its approach to objective justification. Although the claimant’s work and the comparator’s work were broadly similar, the differences in their roles could still justify less favourable terms. The Tribunal should have considered whether those differences justified the particular contractual terms in issue. Regulation 4 additionally provides that less favourable terms may be objectively justified where the fixed-term employee’s contract, taken as a whole, is at least as favourable as the comparator’s contract.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment. The judgment was set aside and the case was remitted to a different Employment Tribunal.