Engel v Ministry of Justice

A part-time worker’s right under Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 depends on proof that the less favourable treatment was on the ground of part-time status. Regulation 5(2)(a) is not confined to isolated components of remuneration and may defeat a claim despite an established disparity with a full-time comparator. Historic or opaque arrangements do not themselves answer the causation question, but they may be found on the evidence not to have arisen because of part-time status.

A related claimant is not entitled as of right to an order under Rule 36(3) releasing that claimant from a lead-case decision. The rule is compatible with Article 6 and permits issue-specific lead-case management, subject to the overriding objective.

The claimant was a part-time Legal Chair in the former Residential Property Tribunals Service. A lead claim by Mrs Burton challenged the daily fee paid to Legal and Valuer Chairs. Employment Judge Macmillan held that the relevant differences in terms resulted from the historical and departmental development of tribunal arrangements, rather than from part-time status.

The claimant appealed that decision, contending that Regulation 5(2)(a) could not lawfully prevent relief once less favourable treatment had been established. After receiving the lead-case decision, he also applied under Rule 36(3) for an order that it should not bind his related claim. Employment Judge Macmillan refused that application. The central issues were the proper scope of Regulation 5(2)(a) and whether the claimant had a right, or any case-specific basis, to be released from the lead-case outcome.

1. Both appeals were dismissed. Regulation 5(1) confers a right only where the conditions in Regulation 5(2) are met. The Employment Judge was therefore entitled to decide whether the disparity was caused by part-time status. There was no textual or principled basis for limiting Regulation 5(2)(a) to discrete allowances such as London weighting.
2. The Regulations implement the non-discrimination principle in Clause 4 of the framework agreement confirmed by the Part-Time Workers Directive 1997. Their purpose is to redress less favourable treatment occurring because the worker is part-time, not every historical inequality between part-time and full-time workers.
3. Historical arrangements may conceal unlawful discrimination, and their historical character alone does not establish a lawful explanation. The Employment Judge, however, had considered the available evidence and found that the terms resulted from piecemeal departmental development, not part-time status. That was a permissible factual finding and disclosed no error of law.
4. Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 creates a discretionary safeguard; it does not entitle every related claimant to be released from a lead-case decision. Reasonable lead-case management is compatible with Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The claimant advanced no factual or legal basis distinguishing his claim from Mrs Burton’s.
5. The Employment Tribunal may designate lead cases on an issue-by-issue basis. Rules 2 and 29 support that practical construction. Any possible error about the claimant’s earlier request to become a lead claimant was not material to the Employment Judge’s reasoning.

• Employment Appeal Tribunal: Both appeals from Employment Judge Macmillan’s decisions of 27 May 2015 and 26 June 2015 were dismissed.
• Employment Tribunal, London (Central): The lead decision rejected the daily-fee claim on the ground that the treatment was not because of part-time status. A subsequent application under Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 was refused.