England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE UNDERHILL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 February 2007

Lord Justice Maurice Kay:

1. Mr Hudson is a former employee of the University of Oxford. His employment came to an end when he was dismissed for misconduct. He presented numerous claims to the Employment Tribunal under various statutory regimes. Only one such claim is relevant to the present appeal, the remainder have either been summarily dismissed or have been permitted to proceed to a full hearing in the Employment Tribunal, that full hearing not yet having taken place.
2. We are concerned with the claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the PTWR). On 19 July 2005 the Employment Tribunal struck out the claim on the basis that it had no reasonable prospect of success. On 22 June 2006 the Employment Appeal Tribunal, in the form of Underhill J sitting alone, came to the same conclusion, albeit for slightly different reasons. Mr Hudson then sought permission to appeal to this court. On 21 September 2006 he appeared in person before Waller LJ, who granted permission.
3. The factual history of Mr Hudson's dispute with the University is complex. For the purposes of this appeal, most of that history is not relevant, but the material circumstances for our purposes can be briefly stated. Mr Hudson was employed by the University at its Museum of the History of Science. At first, in February 1995, he was employed for two days per week as a technician, Grade D. By September 1995 he was working full-time in that capacity and in March 1997 he was appointed to the full-time position of Photographic and General Technician Grade D on a permanent basis. In the grading system operated by the University the post was classed as "non-academic".
4. In June 2000 Mr Hudson applied for and was appointed to the part-time (50 per cent) position of Information Technology Officer for the Museum. This post was classed as falling within an "academic-related" grade and, as such, attracted higher remuneration and other improved terms. It was initially subject to a fixed term contract until the end of 2002 because, at the time, funding was only available until then. However, it continued after the end of 2002 but not on a fixed term basis. From June 2000 until his dismissal, Mr Hudson was employed therefore under two 50 per cent part-time contracts -- the non-academic Photographic and General Technician one and the academic-related Information Technology one. In respect of the former, he continued to be paid by reference to the non-academic scale, whereas for the latter he received academic-related remuneration. Those facts are common ground.
5. However, the case sought to be advanced by Mr Hudson is that, although he was employed under two contracts, in fact he was doing one job. His Information Technology duties and his Technician/Photographic duties were carried out in combination. The reality was that of one full-time job but it suited the University to persist with the two contracts and so to pay him less than full-time academic-related remuneration would require. Nevertheless, the way in which his claim is now put by reference to the PTWR is that under the non-academic part-time contract, he was being paid less than comparable full-time workers, namely those carrying out a combination of information technology, technical and photographic duties in other parts of the University. Moreover, under the academic-related part-time contract, he was also being paid less than comparable full-time workers.
6. In granting permission to appeal, Waller LJ was impressed more by the former than by the latter argument. He said:

"I think it is arguable:

(1) that the true nature of the non-academic part-time contract was that it was academic,

(2) that the University cannot be held to say that it was not a part-time contract, and

(3) thus that as a part-time academic contract it was on less favourable terms than the full-time academic contract, and Mr Hudson may have a claim under the Regulations. It is thus arguable that this claim should not have been struck out."

The statutory framework

7. The material protective provision of the PTWR is Regulation 5, the relevant parts of which read as follows:

"(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker--

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if –

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds.

(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rate principle shall be applied unless it is inappropriate."

"Worker" includes a person who, like Mr Hudson, works under a contract of employment: Regulation 1(1). Regulation 2 provides:

"(1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker.

(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker.

(3) For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract—

(a) employees employed under a contract that is not a contract of apprenticeship;

(b) employees employed under a contract of apprenticeship;

(c) workers who are not employees;

(d) any other description of workers that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.

(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place--

(a) both workers are--

(i) employed by the same employer under the same type of contract, and

(ii) 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

(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at the establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfied those requirements."

The power to strike out

8. The power of a chairman of an Employment Tribunal to strike out a claim is prescribed by Rule 18 of Schedule 1 to the Employment Tribunals (Constitution etc) Regulations 2004. The relevant parts of Regulation 18 are Regulation 18(5) and Regulation 18(7)(b):

"18

…

"(5) Notwithstanding the preliminary or interim nature of a pre-hearing review, at a pre-hearing review the chairman may give judgment on any preliminary issue of substance relating to the proceedings. Judgments or orders made at a pre-hearing review may result in the proceedings being struck out or dismissed or otherwise determined with the result that a Hearing is no longer necessary in those proceedings.

"(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order:--

(b) striking out or amending all or part of any claim or response on the grounds that it is scandalous or vexatious or has no reasonable prospect of success."

9. A prospect of success is reasonable if it is realistic as opposed to fanciful: see Balamoody v United Kingdom Central Council of Nursing [2002] IRLR 288, at paragraph 39 per Ward LJ. In Anyanwu v South Bank Students' Union [2001] UKHL 14, both Lord Steyn at paragraph 24 and Lord Hope of Craighead at paragraph 36 emphasise the need to approach the striking out of discrimination cases with particular caution because of their fact-sensitivity. The use of the strike-out power has recently been reviewed by Elias J in Ezsias v North Glamorgan NHS Trust [2006] UKEAT 705. His judgment is the subject of an appeal to be heard in this court next week. In my judgment the present appeal can be disposed of without awaiting the view that is to be taken of the nuances of the judgment of Elias J.

The decisions of the Employment Tribunal and the Employment Appeal Tribunal in the present case

10. When Mr Hudson formulated his claim under the PTWR, it was first expressed in these terms:

"Suffered less favourable treatment in being employed under two half-time contracts, and independently under each half-time contract, by comparison with comparable staff on full-time contracts, from 12 June 2000 to 28 February 2005."

11. Following a hearing on 8 June 2005, Mr Hudson was given 14 days to show cause in writing as to why this claim should not be struck out as being without a reasonable prospect of success. In a subsequent document Mr Hudson went into more detail including this:

"The claimant was employed under two part-time contracts in order to enable him to be discriminated against, in regard to his remuneration, by comparison to a full-time employee engaged in the same type of work. The very reason for employing the claimant under part-time contracts was to facilitate the discrimination against him…

"The claimant has suffered detriment in terms of pay, holiday entitlement, pay during suspension, the terms of disciplinary and grievance procedures, and otherwise, by comparison with all and any one of the hundreds of other employees employed by the respondent under full-time contracts who were doing exactly the same type of work as the claimant."

12. Nevertheless by her decision of 19 July 2005 the chair of the Employment Tribunal struck the claim out on the basis that it had no reasonable prospect of success. She said that the points made by Mr Hudson:

"…demonstrate a fundamental error in law. In order for the claimant to succeed he must demonstrate that he as a part time worker in a particular role, not in the amalgam of two roles, has been treated less favourably or the subject of a detriment or dismissed because he is a part-time worker in that one particular role compared to the way he would be treated had he been a full-time worker in that particular role: Regulation 2(1)(2) of the 2000 Regulations. The claim therefore for less favourable treatment must inevitably fail as the claimant is not relying on the appropriate comparator for the purposes of the Regulations".

13. But when Mr Hudson appealed to the Employment Appeal Tribunal he was, for the first time, represented by counsel (not then Mr Eaton). In the skeleton argument and oral submissions counsel put the case in a slightly different way. However, Underhill J maintained the strike out. The relevant parts of his judgment are as follows:

"[Counsel] submitted that the Chairman's characterisation of his claim was incorrect: on a proper analysis it was not being brought in respect of any 'amalgam' of his two roles – rather, it was being brought specifically in respect of his (part-time) non-academic job and was indeed therefore (in the Chairman's language) being brought by him 'as a part-time worker in a particular role'. The case was that in that job he was treated less favourably than a comparable full-time worker, the proper comparator being not someone doing a (non-academic) Technician/Photographer job full-time but someone doing his 'true' job, which was that of an Information Officer (being an academic job)".

And a little later:

"While [these] submissions may be right as far as they go, it seems to me unarguable that the true ground of the difference in pay between the Appellant (in his Technician/Photographer role) and his proposed comparators was not the fact that they were full-time and he was part-time but was the fact that they were on academic contracts and he was on a non-academic contract: this follows inexorably from the fact that, as the Appellant accepts, his terms in his non-academic job are pro rata to the terms afforded to employees doing an equivalent non-academic job full-time. His true complaint was not 'my part time work is paid less than comparable full-time work' but 'for part of my time I am working (inappropriately) on a non-academic contract'. The right of a part-time worker under Regulation 5 not to be treated less favourably than a comparable full-time worker only arises if the treatment is on the ground that he is a part-time worker: see Regulation 5(2)(a). That is not the ground of the treatment complained of here.

"For that reason I believe that the Appellant's claim under this head is bound to fail."

14. I should add that we know little or nothing of the University's evidential case. However, since the hearing in the Employment Appeal Tribunal, Mr Hudson has added to his earlier pleading by way of a self-prepared skeleton argument prior to his appearance before Waller LJ. In it he attributes to the University these statements:

"Mr Hudson 'had two posts which jointly came to a full-time role' "

"… in practice there was no distinct demarcation between the two posts"

"The distinction between the two employment contracts was a false one … the contracts were intertwined"

"There was no clear division between [your] two roles".

According to Mr Hudson, those quotations emerged from the disciplinary hearings that took place within the University.

Discussion

15. When dismissing Mr Hudson's appeal Underhill J expressly referred to the words of Lord Steyn and Lord Hope of Craighead in Anyanwu (see above.) He nevertheless concluded that:

"The point here is a hard-edged point of law deriving from facts which are not in dispute or open to interpretation."

16. I cannot agree with that view. My reasons are not exactly the same as, but they are similar to, those given by Waller LJ when granting permission to appeal. It seems to me that what the Employment Tribunal and, albeit on a slightly different basis, Underhill J did was to come to a conclusion on a factual analysis or a legal analysis founded on a factual assumption which may not be correct. Its correctness will depend upon an assessment of the evidence which, in my judgment, may not be susceptible to the schematic conclusion reached below and for which Mr Swift contends in this court. If at the material time Mr Hudson had been working say for the first two and a half days of each week under one contract and the second half of the week under the other contract -- say information technology until Wednesday midday and then unrelated non-academic technical matters until Friday afternoon -- the position would accord with the case for the University.
17. However, that is not the case that Mr Hudson seeks by evidence to advance. In his documents Mr Hudson has clearly put his case on the basis that from June 2000, he would say for the convenience of the University, he had been employed under two part-time contracts although the reality was that he had one full-time job and that when compared with other full-time employees and on his own account, its content was academic-related. If this factual basis were to be accepted by an Employment Tribunal, could it properly be said that the prospect of the claim under the PTWR succeeding is no more than fanciful? I do not believe so. Whilst in order to succeed in his claim under Regulation 5 Mr Hudson would have to establish that he was "a part-time worker" who was treated less favourably than a "full-time worker" and that the less favourable treatment was "on the ground that" he was a part-time worker, it is too simplistic to conclude at this stage that he is bound to fail. I consider it to be arguable that:

1. His contention that the reality was that of a single full-time job does not necessarily preclude Mr Hudson from having been a part-time worker as defined in Regulation 2(2).

2. To the extent that he was a part-time worker under the non-academic contract he was on account of his job treated less favourably than relevant full-time comparators.

3. He was so treated on the ground that he was contractually and within the terms of Regulation 2 a part time worker.

18. On any basis the facts of this case are unusual. They have been viewed differently by the tribunal or court at each stage, although I do not think that there is a significant difference between my analysis and that of Waller LJ. It seems to me that the case remains fact-sensitive and dependent upon what a fact-finding tribunal makes of the evidence.
19. For these reasons I would allow the appeal and permit Mr Hudson to pursue his claim under the PTWR before the Employment Tribunal. Nothing I have said should be taken as predictive of the eventual outcome one way or the other.

Lord Justice Toulson:

20. I agree. Initially I thought that the reasoning of Underhill J was formidable, and it may well be right. However, I think that it is at least arguable that where an employee has two part-time contracts with the same employer, performing contractual duties which are in practice so closely related that it would be difficult to say at a given moment whether he was performing his duties under one or the other contract or both, it is necessary in considering the application of the Regulations to have regard simultaneously to both part-time contracts for the purpose of considering under Regulation 5 whether he has been treated less favourably than a comparable full-time worker carrying out all his contractual duties. I express no concluded view on the matter. However, there are facts to be investigated and I do not think that the claim should be struck out at this stage.

Sir Anthony Clarke, MR:

21. I agree with both judgments and add a few words of my own because we are disagreeing with both the Employment Tribunal and the Employment Appeal Tribunal.
22. This is a comparatively unusual case because Mr Hudson was employed under two part-time contracts. It follows that he was a part-time worker within the meaning of Regulation 2(2) of the Regulations. He says that if he is compared with a person doing the same work as him as a full-time worker, he was treated less favourably because he was paid less. Mr Eaton submits that he was so treated "on the grounds that he is a part-time worker" within Regulation 5(2)(a), albeit that he was a part-time worker under two separate contracts. Mr Eaton submits that there is no reason in principle why the comparison should not be between a part-time worker doing two jobs and a full-time worker doing both jobs together.
23. Mr Swift submits, however, that that is not permissible and that the two part-time contracts must be looked at separately and each compared with a full-time worker under separate contracts. In my judgment it is at least arguable that Mr Eaton's submission is correct and that that of Mr Swift is to take too narrow a view of Regulation 5(2). I would not wish finally to decide this question, which may be of some general importance, without knowing the facts. Regulation 5 is about "less favourable treatment", which on the face of it involves a consideration of the actual treatment of the part-time employee on the facts by comparison with that of a relevant full-time employee.
24. In all the circumstances I agree that this appeal should be allowed and the matter remitted to the Employment Tribunal, so that will be the order of the court.

Order: Appeal allowed.