Carl v University of Sheffield EAT/0261/08

part-time workers | less favourable treatment | comparators | sole reason

The Employment Appeal Tribunal (EAT) has held that the claimant's part-time status does not have to be the sole reason for the less favourable treatment in order for him or her to succeed in a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551).

Mrs Carl was a part-time teacher in the sociological studies department at the University of Sheffield. She claimed that she had been treated less favourably than her named comparator, full-time teacher Ms McClelland. Ms McClelland was paid for preparation time, while Mrs Carl was not. An employment tribunal concluded that Ms McClelland was not a true comparator because her skills were "way beyond" those of Mrs Carl in terms of her practice and experience as a social worker. It did allow Mrs Carl to compare herself to a hypothetical comparator, but found that she had not been less favourably treated when compared to a "generic teacher" on the university's full-time teaching contract of employment. In doing so, the tribunal found that the requirement in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 that the less favourable treatment be "on the ground that the claimant is a part-time worker" means solely on that ground, in accordance with the EAT decision in Alan Gibson v The Scottish Ambulance Service EATS/0052/04 38632.

The EAT held that Mrs Carl could not compare herself to a hypothetical comparator. Unlike the Sex Discrimination Act 1975 and Race Relations Act 1976, the Equal Pay Act 1970 provides that the comparison must be made with an actual comparator. The formula used in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is closer to that used in the Equal Pay Act 1970. The Regulations do not permit a hypothetical comparator to be used, except in circumstances where a full-time worker switches to a part-time contract or vice versa. Therefore, Mrs Carl must rely on an actual comparator and the employment tribunal was within its rights to find that Ms McClelland was not an appropriate comparator.

While this was enough to dispose of her claim, the EAT went on to say that the individual's part-time status does not have to be the sole reason for the less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The EAT pointed out that there are conflicting authorities. In Gibson and McMenemy v Capita Business Services Ltd [2007] IRLR 400 CS (a Scottish Court of Session case that the EAT in England and Wales is not technically bound to follow), it was found that part-time status must be the sole reason for the less favourable treatment. However, in Sharma and others v Manchester City Council [2008] IRLR 336 EAT, it was found that being a part-time worker does not have to be the sole reason. The EAT preferred the approach in Sharma. It said that, while part-time work must be the effective and predominant cause of the less favourable treatment, it need not be the only cause.

Case transcript of Carl v University of Sheffield (Microsoft Word format, 75K) (on the EAT website)

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