Moultrie & Ors v The Ministry of Justice (Part Time Workers) (Rev 1)

For the comparator requirement in regulation 2(4) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the tribunal must assess the whole of the work actually performed by each group. It must give particular weight to the extent and importance of work which is identical, but must also decide whether qualitative differences are sufficiently important to prevent the work being broadly similar overall.

A substantial identical core activity does not automatically establish comparability. Work which a comparator may undertake in the future is irrelevant. If the workers are not engaged in the same or broadly similar work, they are not comparable and objective justification for differential treatment does not arise.

The appellants were fee-paid medical members of tribunals who had no pension entitlement for that service. They sought to compare themselves with salaried regional medical members, who did have pension access.

Employment Judge Macmillan found that regional medical members spent about 85% of their time undertaking identical judicial sitting work. Their remaining duties included appraisal, recruitment, training, delegated work, mentoring and other functions within the tribunal structure. The Employment Judge held that those qualitative differences meant that the work was not broadly similar.

The appellants appealed on the basis that the Employment Judge had misapplied the comparator test, considered future or ad hoc work, and wrongly prevented consideration of objective justification.

1. Appeal dismissed. The Employment Judge correctly applied regulation 2(4) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and was entitled to find that the fee-paid medical members and regional medical members were not engaged in the same or broadly similar work.
2. The correct approach, drawn from Matthews and others v Kent and Medway Fire Authority and others [2006] ICR 365, is to consider the whole of the work actually undertaken by each group. The assessment must take account of similarities and differences, together with relevant qualifications, skills and experience. Particular weight is due to the extent of identical work and its importance to the enterprise, but those matters are not conclusive.
3. The Employment Judge had expressly recognised that 80–85% of the work was identical judicial sitting work, that it was of the highest importance, and that the groups had no relevant difference in qualifications, skills or experience. He then permissibly assessed whether the remaining work was sufficiently important to prevent broad similarity overall.
4. The additional functions of regional medical members were not merely extra tasks arising because they worked full time. They formed part of a deliberately created and qualitatively different role, with work delegated from chief medical members and chamber presidents. The Employment Judge was entitled to regard that work as sufficiently important to distinguish the roles.
5. The comparison concerned work actually performed or required at the relevant time. Read fairly, the Employment Judge had not relied on speculative future developments, transient duties, or status detached from actual duties. Since the appellants were not comparable workers, the objective-justification stage under regulation 5(2) did not arise.

• Employment Appeal Tribunal: dismissed the appeal from Employment Judge Macmillan’s preliminary determination that the proposed fee-paid comparator group was not engaged in the same or broadly similar work as regional medical members.
• Employment Tribunal: determined the lead-case preliminary issue under Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.