Comparisons go pear-shaped

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ('the Regulations') came into force on 1 July 2000. They implement the European Part-Time Worker Directive 97/81/EC (the Directive). The Regulations allow part-time workers to challenge less favourable treatment on the ground of their part-time status if it cannot be objectively justified. The Regulations apply to all workers, not just employees. They apply to men as well as to women. There is no qualifying period or upper age limit for bringing a claim under the Regulations. In Carl v The University of Sheffield, the employment appeal tribunal (EAT) has recently considered two important points relating to the Regulations. The first concerns the appropriate comparator under the Regulations. To establish less favourable treatment under the Regulations, a part-time worker must identify an appropriate full-time worker as a comparator who has been treated more favourably. The comparator must be: employed by the same employer; employed under the same type of contract; engaged in the same or broadly similar work (having regard, where relevant, to whether they have a similar level of qualification, skills and experience); and normally working or based at the same establishment as the part-time worker. The second question addressed by the EAT in this case relates to whether or not, to succeed in a claim, it must be shown that part-time worker status is the sole reason for the less favourable treatment. In this case, Mrs Carl taught shorthand on a part-time basis in the Journalism Department at the University of Sheffield. She taught up to NVQ Level 3 (A-level) standard. She pointed to a named comparator, a Ms McClelland, when arguing before an employment tribunal that she had been treated less favourably on the ground of her part-time status – McClelland was paid for preparation time whereas Carl was not. McClelland worked under a full-time university teacher's contract. She taught in the sociological studies department on grade 8 and taught up to PhD level. Carl argued that she was paid less than a 'hypothetical' comparator, in this case a 'generic teacher' on a university teacher's contract. The tribunal had to decide whether this was a permissible approach to take under the Regulations. This question has already been answered under various other strands of anti-discrimination law. For example, it is clear under direct sex or race discrimination law that a claimant can compare him or herself to either an actual or hypothetical comparator. By contrast, under the Equal Pay Act 1970, the comparison must be made with an actual comparator only. This question is significant as the remit of the particular piece of legislation is narrowed down considerably if the claimant has to point only to an actual comparator. The other question raised in this case before the EAT is whether, in order to succeed in a claim, a part-time worker must show that part-time worker status is the sole reason for the less favourable treatment, or whether it is enough to show that the fact of being a part-timer was just one of the reasons for the less favourable treatment. The Regulations themselves state that the right to no less favourable treatment on part-time worker status applies only if 'the treatment is on the ground that the worker is a part-time worker'. Case law to date has been divided on this issue. In this particular case, the employment tribunal chose to follow the line of case law which concludes that the expression 'on the ground that the claimant is a part-time worker' in the Regulations means 'solely' on that ground. Taking that strict approach, the tribunal found against Carl. However, she appealed to the EAT.