Barton v Secretary of State for Scotland & Ors (Part Time Workers)

A statutory pension-eligibility threshold which excludes a worker from consideration solely because the worker is part-time must be read compatibly with the prohibition on less favourable treatment of part-time workers. A discretionary pension power does not remove that protection.

Custom and practice may identify a worker as full-time for the purposes of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, even where that worker worked 70% of notional full-time hours. An actual comparator may be valid where the discriminatory policy was in force during both workers’ employment. The less favourable treatment may arise from the adoption and continuing operation of that policy, rather than only when a pension application is decided.

The claimant had been clerk in Scotland to the General Commissioners of Income Tax until the office was abolished in 2009. Under section 3(3) of the Taxes Management Act 1970, a pension could be awarded only to a clerk regarded as full-time. The respondent’s policy treated a clerk working at least 70% of notional full-time hours as eligible for consideration, but excluded the claimant.

The Employment Tribunal dismissed his complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It held that a former English clerk, Mr Howey, was not a valid comparator when the claimant retired and was not a full-time worker for the Regulations. The claimant appealed on those issues.

1. Appeal allowed. The Employment Tribunal made errors of law in construing the relevant legislation. The matter was remitted to the same Tribunal to determine the appropriate remedy.

2. Applying Marleasing (Case 106/89), section 3(3) of the Taxes Management Act 1970 had to be read so far as possible consistently with the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The condition that only a “full-time” clerk could pass the threshold for discretionary pension consideration discriminated against part-time workers. Section 3(3) therefore had to be read without the words “full-time” and the associated definition. The discretion whether to award a pension remained.

3. The respondent’s 70% policy was expressly a means of deciding who could be treated as a full-time clerk for pension purposes. It made Mr Howey identifiable as a full-time worker under regulation 2(1), having regard to the employer’s custom and practice. The claimant, who could not satisfy that threshold, was a part-time worker under regulation 2(2).

4. The claimant could compare himself with Mr Howey. The Regulations did not require two workers to apply for pension consideration on the same day. The policy would have excluded the claimant while Mr Howey was employed and was granted a pension. The respondent decided to treat the claimant less favourably when it adopted that policy, and the treatment continued throughout the claimant’s employment. Regulation 8(4) concerned time calculation and did not prevent that conclusion.

5. As the parties had not fully addressed the available remedies under regulation 8, the EAT remitted the case for the same Employment Tribunal to consider declaration, compensation, or other appropriate relief.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal’s dismissal was set aside and the case remitted to the same Tribunal for remedy.
• Employment Tribunal, Edinburgh: dismissed the claimant’s complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 on 26 May 2014, holding that he had not identified a valid comparator.