Roddis v Sheffield Hallam University

The categories in Regulation 2(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 are broadly defined and set a low threshold for comparison.

A zero-hours contract is not, of itself, a different type of contract for the purposes of Regulation 2(3).

For Regulation 2(4)(a)(i) it is sufficient that both workers' contracts fit the same listed category in Regulation 2(3); detailed differences of terms do not prevent comparability.

The claimant, an associate lecturer on a contract permitting zero hours, complained under the Part-time Workers Regulations.

The Employment Tribunal found his proposed full-time comparator was not employed under the same type of contract and struck out the part-time claim.

The claimant appealed to the Employment Appeal Tribunal on the narrow question whether the Tribunal had erred in law in its approach to Regulation 2(4)(a)(i) and Regulation 2(3).

The EAT considered the Tribunal's reliance on [2005] IRLR 211 and analysed the effect of [2006] ICR 365 and subsequent authorities.

(1) The appeal is allowed. The Employment Tribunal misdirected itself in law in concluding the comparator was employed under a different type of contract (paragraphs 4–5 of the ET judgment were revoked).

(2) Regulation 2(3) provides a comprehensive and deliberately broadly defined list of contract categories for paragraphs 2(1), (2) and (4). The categories set a low threshold to trigger a comparison between part-time and full-time workers. (See paras [1]–[2].)

(3) A contract is not to be treated as a different type merely because its terms or an employer's choice lead to different treatment. Differences of wording or of hours do not of themselves change the category under Regulation 2(3). (See paras [1]; [11]–[13].)

(4) To satisfy Regulation 2(4)(a)(i) it is sufficient that both workers' contracts fall within the same paragraph of Regulation 2(3). No further detailed identity of terms is required. (See paras [1]; [29]–[31].)

(5) A zero-hours contract is not, by itself, a distinct type of contract under Regulation 2(3). If so treated, the purpose of the Regulations would be defeated. (See paras [1]; [29]–[31].)

(6) The Employment Tribunal erred in treating the European Court of Justice decision in [2005] IRLR 211 as determinative. The House of Lords in [2006] ICR 365 explains and confines that authority. The EAT distinguished [2005] IRLR 211 on the facts and legal approach. (See paras [22]–[28].)

(7) Under section 35(1) of the Employment Tribunals Act 1996 the EAT substituted the Employment Tribunal's finding. On the ET's undisputed facts both claimant and comparator fell within category (a) of Regulation 2(3).

(8) The case is remitted to the Employment Tribunal to decide whether the workers were engaged in the same or broadly similar work under Regulation 2(4)(a)(ii); and if so, to determine whether less favourable treatment under Regulation 5 occurred, whether that treatment was on grounds of part-time status, and if so whether it was objectively justified. (See paras [31]–[32].)

(9) Observations for guidance: the Regulations should be read and applied as the Regulations, subject to relevant domestic developments. The insertion of section 27A of the Employment Rights Act 1996 post-dates the facts and would not have changed the Regulation 2(3) analysis. (See final paras.)

• Employment Appeal Tribunal: Appeal allowed; substituted finding that claimant and comparator were employed under the same type of contract; case remitted to the Employment Tribunal to determine remaining issues.
• Employment Tribunal (Sheffield): Preliminary Hearing 2 May 2014; original decision disallowed comparability and struck out the part-time workers claim (revoked by EAT).