Engel v Ministry of Justice

Regulation 5(2)(a) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 must be satisfied for a claim under Regulation 5(1) to succeed.

Whether treatment is "on the ground that the worker is a part-time worker" is a factual and legal question for the tribunal. The tribunal may reject historical or administrative explanations where evidence shows a causal link to part-time status.

Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 does not give non‑lead claimants an absolute right to be released from the binding effect of a lead decision. Case management by lead cases is compatible with Article 6 where proportionate.

The appellant, a former part‑time Legal Chair in the Residential Property Tribunals Service, appealed two Employment Tribunal case‑management decisions concerning claims under the Part‑Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The central issues were (a) the proper construction and application of Regulation 5(2)(a) — whether less favourable treatment must be "on the ground that" the worker is part‑time — and (b) whether an order under Rule 36(3) should have been made releasing the appellant from the binding effect of a lead case decision on common issues.

The appeals challenged Employment Judge Macmillan's factual and legal conclusions in judgments dated 27 May 2015 and 26 June 2015 and progressed to the Employment Appeal Tribunal after preliminary consideration by HHJ Peter Clark.

(1) Overall disposition: The appeals are dismissed. The Employment Judge did not err in law in his application of Regulation 5(2)(a) of the Part‑Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and did not err in refusing the appellant's application under Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

(2) Regulation 5(2)(a): The right under Regulation 5(1) applies only where the less favourable treatment is on the ground that the worker is a part‑time worker. That condition is not a narrow or exceptional gloss. The tribunal must ask whether the reason for the treatment is the worker's part‑time status. If evidence shows a non‑discriminatory explanation, the regulation defence succeeds. The Employment Judge examined the evidence and found a legitimate historical and administrative explanation unconnected to part‑time status. That finding involved no legal error (see paras [49]–[51]; [50]).

(3) Interaction with the PTWD: The 2000 Regulations implement the Part‑Time Workers Directive 97/81/EC. The domestic wording follows the Directive's requirement that discrimination be "solely because" the worker is part‑time. The tribunal's approach accords with that purpose.

(4) Hypothetical and policy points: The court rejected the appellant's submission that Regulation 5(2)(a) must be read so as never to allow historical disparities to persist. Whether perpetuation of historic differences is lawful depends on the causal reasons for the difference, a matter for tribunal fact‑finding.

(5) Rule 36(3) and Article 6: Rule 36(3) does not confer an unfettered right on non‑lead claimants to be released from the effect of a lead decision. Article 6 is subject to lawful limitations. Group or lead case management is a legitimate, proportionate case‑management tool. The Employment Judge rationally concluded the appellant offered no distinct factual or legal ground to disentitle him from the lead decision.

(6) Procedure and remedy: No appellate intervention was warranted on the facts or law. The Employment Judge's case‑management determinations were within the tribunal's discretion and compatible with Article 6. The EAT dismissed the appeals without remittal.

• Employment Tribunal (London Central): Lead case and related case management hearings; judgments on common issues dated 27 May 2015 and 26 June 2015 (Employment Judge Macmillan). The tribunal found a non‑discriminatory reason for the terms complained of (paras [49]–[51]).
• Employment Appeal Tribunal: Appeal heard by HHJ David Richardson (sitting alone); appeal dismissed on 30 August 2016.