Part-time Workers’ Fire Still Burning – Matthews v Kent & Medway Towns Fire Authority

The Part-time Workers’ Regulations 2000 came into force on 1 July 2000.  So far there have been a limited number of claims brought under the Regulations.  By far the most high profile of these is the case of Matthews v Kent & Medway Towns Fire Authority, a test case brought by 12,000 part‑time firefighters who number almost a third of the total number of UK firemen.  They claimed that they were being treated less favourably than their full‑time counterparts, particularly in relation to the firemen’s pension scheme and other benefits.  The House of Lords has recently given its judgement in this case and it has been sent back to the Employment Tribunal for determination. 

In order to bring a claim under the Regulations, a part‑time worker must be able to identify a full‑time comparator and both of them need to be employed under the same type of contract.  The next hurdle is a need to demonstrate that both the part‑time worker and the full‑time comparator are engaged in the same or broadly similar work.  It is only once these two conditions have been satisfied that the part‑time worker is able to obtain the protection of the Regulations, which prohibit less favourable treatment of part‑time workers.

Both these conditions proved problematic for the part‑time firefighters at the Employment Tribunal, who found that the Claimants could not compare themselves with full‑time firefighters because they worked under different types of contract and because they did not do the same or broadly similar work.  The EAT upheld the Tribunal’s decision.  The Court of Appeal then found that the two groups did indeed work under the same type of contract.  The House of Lords has recently allowed the Claimants’ appeal by deciding that they and the full‑time firefighters are both engaged in the same or broadly similar work.

The first condition, as to the types of contract involved, is a point of construction of the Regulations rather than substance.  In most cases, one would expect both the part‑time claimant and the full‑time comparator to be employed under a contract of employment.

The more significant issue is whether or not the claimant and the comparator are “engaged in the same or broadly similar work having regard where relevant to whether they have a similar level of qualifications, skills, and experience”.  The Tribunal had focused on the fact that whilst part‑time firefighters spent a high proportion of their time responding to emergencies, the proportion of the working week spent on this by full-timers was lower.  The full‑timers spent more of their time on non‑emergency duties and although the part‑time firefighters could do this type of work, in practice they were very rarely called upon to do so.  This led the Tribunal to find that the two groups of employees were not engaged in the same or broadly similar work.

However, the majority of the House of Lords found that whilst one cannot ignore differences in work under the Regulations, one should always return to the question of whether the work is the same or broadly similar.  The emphasis is not on striking a balance between similarities and differences but merely upon whether the work is similar.  In performing that exercise, the extent to which the work is exactly the same must be of great importance.  In the case of the firefighters, the central or core activity was attending emergency fires.  The House of Lords took the view that there are many instances where full‑timers have extra activities compared to part‑timers but these should not prevent their work from being regarded as the same or broadly similar.  To focus on the extra activities runs the risk of giving too much weight to differences which are the inevitable result of one person working full‑time and another working part‑time.

The House of Lords also dealt with the issue of qualifications and skills.  Under the Regulations, these factors should be taken into account where relevant.  The House of Lords found here that differences in qualifications were not sufficient for those differences to be taken into account.  A Tribunal should assess the extent to which such differences affect the work that the two different kinds of worker actually perform.

One interpretation of this judgement is that it represents a policy decision by the House of Lords to make the protection afforded by the Regulations easier to obtain.  The effect of the case is that in future the key area of debate will not be the two “threshold” conditions (referred to above) but rather whether there is less favourable treatment and whether or not this can be justified.  Certainly, the original Tribunal decision seemed unduly restrictive and would have made it very difficult for part‑time workers’ claims to get past the first two threshold criteria.  The outcome of the House of Lords judgement is that it gives better effect to the underlying principles behind the Regulations.  Another result will undoubtedly be an increase in claims brought under the Regulations.