Can an employee on a zero-hours contract compare themselves to a full time employee for the purposes of a part-time workers discrimination claim? In Roddis v Sheffield Hallam University the Employment Appeal Tribunal had to decide whether a permanent, full time lecturer was employed under the ‘same type of contract’ as a part-time lecturer on a zero hours contract.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations) make it unlawful for an employer to treat part-time workers less favourably than their full-time colleagues regarding their terms and conditions, unless the treatment can be objectively justified. In order to bring a claim under the PTW Regulations a Claimant must be able to compare themselves with a full time comparator employed on the same type of contract.
Employers have relied upon the judgment of the European Court of Justice in Wippel v Peek & Cloppenburg GmbH as authority for the proposition that a zero-hours contract can never be compared with a full-time contract.
Mr Roddis was employed by Sheffield Hallam University (the University) on a zero-hours contract. Whilst the University were under no obligation to provide Mr Roddis with any work, he had nevertheless accepted in excess of 30 offers of work under the contract. He brought a claim under the PTW Regulations seeking to compare himself with a permanent, full time lecturer. The tribunal struck out the claim in the basis that Mr Roddis had not identified a valid comparator.
Mr Roddis appealed.
The EAT distinguished Wippel. In that case the Claimant wished to be paid on the basis of a maximum number of hours that she could have worked, in circumstances where she was under no obligation to work at all. In this case, Mr Roddis was not seeking to be paid a full-time salary irrespective of the number of hours worked.
Further, Wippel had been considered and distinguished by the House of Lords in Matthews v Kent & Medway Towns Fire Authority which made clear that whether a comparator is working under the same type of contract is determined by Regulation 2(3), which sets out four types of contract; the essential question is whether the contracts fell within the same category. The categories include:
• employees employed under a contract that is not a contract of apprenticeship
• employees employed under a contract of apprenticeship, and
• workers who are not employees.
A ‘zero-hours contract’ was not a type of contract. Here Mr Roddis and his full time comparator were both employees working under a contract of employment. Thus they were ‘employees employed under a contract that is not a contract of apprenticeship’. The EAT pointed out that a difference in hours cannot be taken as a reason that the contracts were dissimilar because this would defeat the purpose of the legislation.
This case provides clarification on the position of individuals employed under ‘zero-hours’ contracts. The label applied to a contract is not determinative for the purposes of the comparison; the focus is on the substance of the employment relationship.