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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Adams v East Antrim Institute of Further and Higher Education [2008] NIIT 1221_07IT (07 February 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1221_07IT.html
Cite as: [2008] NIIT 1221_7IT, [2008] NIIT 1221_07IT
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- The issue before the tribunal was whether the respondent in the arrangements made for the granting of remitted time to the claimant to complete a Post Graduate Certificate in Further and Higher Education unlawfully discriminated against the claimant contrary to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.
- The tribunal heard evidence from the claimant, Andrew Watt and Alison Anderson. A statement of agreed facts was presented to the tribunal and a bundle of relevant documentation received from both parties. Counsel for both parties clarified at the outset of the hearing that in their view the essential issue was whether the use of the pro rata principle by the respondent was appropriate in the circumstances of this case.
- Having analysed the evidence before it insofar as same is relevant to the issue set out above, the tribunal came to the following findings of fact:-
- The law in relation to the issue before the tribunal is found in Council Directive 97/81/EC, the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 passed to implement that Directive, extended to the United Kingdom by Council Directive 98/23/EC. The Directive is commonly known as the Part-Time Work Directive. It implemented a Framework Agreement reached between cross industry European management and labour organisations. A number of stated purposes were detailed in the Framework Agreement including "(a) to provide for the removal of discrimination against part time workers and to improve the quality of part time work and (b) to facilitate the development of part time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of the employer and workers" - clause 1. A principle of non discrimination was adopted; see; clause 4.
- Clause 4 defines the principle of non-discrimination. It reads
- Clause 5 (d) of the Framework agreement provides employers should give consideration to "measures to facilitate access to part time work at all levels of the enterprise, and where appropriate to facilitate access by part time workers to vocational training to enhance career opportunities and occupational mobility".
- Clause 11 of the Directive states that the signatory parties to the Framework Agreement wished "to set out the general principles and minimum requirements for part time working".
- The preamble to the Framework Agreement states that the Agreement sets out the "general principles and minimum requirements relating to part time work. It illustrates a general framework for the elimination of discrimination against part time workers and to assist the development of opportunities for part time working on a basis acceptable to employers and workers." It also gives an indication of a number of general considerations which include at clause 5 the attaching of "importance to measures which would facilitate access to part time work and take up education and training opportunities to improve their skills and career opportunities for the mutual benefit of employers and workers and in a manner which would assist the development of enterprises".
- The power to make the Regulations derives from s 19 of the Employment Relations Act 1999. The claimant alleges infringement of the right conferred by regulation 5:-
- The definition of "pro rata principle" is found in regulation 1 (2) as amplified by r. 1 (3) -
- The Tribunal considered the relevant case law including decisions such as James, Carden & Butler -v- Great Northern Eastern Railways [2005] UKEAT/ 0496/04, Christie v Department of Constitutional Affairs and Department for Work and Pensions UKEAT 2007 Steele v Police Service of Northern Ireland [2007} NIIT81, and two cases which the claimant's representative referred the tribunal to Davies v Neath Port Talbot County Borough Council [1999] UKEAT449/97 and Kuratorium Fur Dialyse Und Nierentransplantation eV v Lewark ECJ C-457/93. The Tribunal also considered the relevant provisions of the Department for Employment and Learning Guidance on Part Time Work The Law and Best Practice. It is stated in the introduction on this document that "The Directive aims to end less favourable treatment of part-timers in order to support the development of a flexible labour market by encouraging the greater availability of part-time employment and increasing the quality and range of jobs which are considered suitable for part-time work or job-sharing. The regulations ensure that part-timers are not treated less favourably in their contractual terms and conditions than comparable full-timers, unless different treatment is justified on objective grounds if it can be shown that it is necessary and appropriate to achieve a legitimate business objective".
- It is clear to this tribunal that the aim of the regulations is to ensure part time workers are not treated less favourably than full time workers and to reflect the importance of taking up education and training opportunities to improve skills of part time workers thereby enhancing career and occupational mobility. As is reflected in the case law referred to in the above paragraph generally equality is achieved by applying the pro-rata principle Christie v Department of Constitutional Affairs and Department for Work and Pensions UKEAT 2007 Steele v Police Service of Northern Ireland [2007] NIIT81. The Steele case concerned a matter of pay and therefore not surprisingly given the specific references to pay in the regulations the tribunal in that case asserted that Regulation 5 (3) requires a tribunal unless it is inappropriate to apply the "pro-rata" principle in determining whether a part time worker was treated less favourably than a comparable full time worker.
- The parties identified the main question of fact for the tribunal at the outset of the case as whether it was appropriate for the respondent to apply the pro-rata principle to the provision of reduced student contact time for the purposes of facilitating participation by lecturers both full time and part time in the PGCFHE course. In dealing with the issue the tribunal agreed with the submission of the representatives that there was very little case law on the exact issue or precedent as to circumstances where a court has considered the question or meaning of "appropriate" or "inappropriate". The tribunal considered it was required to have regard to first principles and analogous situations dealt with in case law.
- The case law to which the tribunal was referred to by counsel for the claimant included two European Court of Justice (hereinafter referred to as ECJ) decisions. The first Arbeuterwohlfahart DerStadt Berlin e v Botel [1992] IRLR 423 and Kuratorium Fur Dialyse Und Nierentransplantation eV v Lewark [1996] IRLR 637 commonly known respectively as the Botel and Lewark cases. Both involved referrals in relation to the Equal Pay Directive from German courts. Both involved the national legislative provisions concerning paid leave for attendance at Staff Committee training courses. Staff Committee work or role would appear to be analogous to the trade union role that exists in this jurisdiction see Davies v Neath Port Talbot County Borough Council [1999] UKEAT449/97. The Davies EAT decision concerned attendance by part time trade union health and safety representative at training course. She was not paid for her full attendance even though she attended the course on a full time basis. The EAT considered the Lewark and Botel cases and found that the work of trade unions and Staff Councils or Committee were analogous as both provide a "direct benefit to the employer and fellow employees".
- In Botel the ECJ expressed concern that part time employees would receive less by way of financial compensation than their full time counterparts when attending training courses which exceeded their working hours when "in the final analysis two categories of employees participate in exactly the same number of hours of training in order to be able to attend properly to the interests of workforce and general well being of the undertaking". Accordingly the court held that compensation in the form of paid leave or overtime payments for participation in a training course falls within the definition of "pay" in the relevant directive. Further the court held that the directive precludes national legislation which limits compensation for part time workers to their individual working hours when they attend training courses during working hours for a period of hours which amount to full time working hours when full time employees who participate in the same courses are compensated up to the limit of full time working hours. The court considered such differential treatment gave rise to indirect discrimination unless the legislature can establish that the relevant legislation is justified by objective factor unrelated to any discrimination on grounds of sex. The PGCFHE, like the training undertaken for staff councils, is undertaken in order to be able to attend properly to the interests of students and the college. This is reflected in the wording of Appendix 3 and clause 9(5) of the Contract.
- It is fair to say the tribunal found the James, Carden & Butler -v- Great North Eastern Railways [2005] UKEAT/ 0496/04 (hereinafter referred to as the Great North Eastern Railways case) the most helpful in guiding their decision making. While again that case concerned a dispute over pay, in particular an additional hour's allowance, Mr Justice Richardson identified the relevant questions that arise where it is common ground between the parties that the claimants are part time workers within r 2.2 who could point to comparable full time workers within r.2.4. In the Great North Eastern Railways case Richardson J records that the pro rata principle is to be applied unless it is inappropriate. It is recognised that there are limits to the application of the pro-rata principle as the regulations as drafted state it applies "only to pay or any other benefit". Mathews and Ors v Kent & Medway Towns Fire Authority [2003] IRLR 732 recognises that not all forms of pay or benefit will be susceptible to its application. This tribunal was satisfied that the contractual provisions concerning remitted time were a "benefit" within the meaning of the regulations. A tribunal in considering whether it is appropriate to adopt the pro rata principle is advised by Richardson J to bear in mind that "the fundamental purpose of the principle is to enable a valid comparison to be made between the remuneration of a part time worker and their full-time counterpart so as to identify whether a part-time worker is being treated less favourably and if so to what extent". His honour Richardson J describes the principle as "a tool for determining" whether there has been less favourable treatment. Richardson J recommends as a useful exercise for a tribunal to consider carefully how the pro-rata principle might apply to the case before it.
- This tribunal found paragraph 34 of that decision most helpful in suggesting the appropriate approach to be taken to the issues in this type of case. Applying that approach the tribunal concluded that in this case the issue that arises is whether part time workers are less favourably treated by the Institute than the full time workers as regards the terms of their contract because they are not given the same remitted period of student contact time for the same course/qualification? In determining that issue two sub questions arise. (A) is it appropriate to apply the pro-rata principle r.5.3? (B) If so how is it applied and with what result r.1.2 and 1.3? If the first issue is resolved in favour of the claimant then the questions arise whether the difference in terms and conditions is less favourable treatment on the ground that the claimant was a part time employee and if so whether the treatment is justified on objective grounds.
- While the parties identified the issue at the outset of this case as requiring determination by the tribunal as to whether the use of the pro rata principle by the respondent to the contractual provisions concerning remitted student contact time was appropriate in the circumstances of this case. However it appears to this tribunal that the issue is correctly identified in paragraph 1 (i) of this decision. The tribunal favoured the approach recommended by Richardson J to consider first is it appropriate to apply the pro rata principle and if so how is it applied and with what result.
- The wording used in the Directive and Framework Agreement is that "Where appropriate the pro rata principle should apply". Oxford Dictionary defines appropriate as "suitable or proper". The definition of inappropriate in the same dictionary which is the wording found in the regulations is "not appropriate". The wording of Regulation 1.1 means that the part time worker "is entitled to receive not less than the proportion of pay or benefit that their hours bear to the hours of the comparable full time worker. This means that the application of the pro-rata principle could result in a part time worker receiving more than their proportion of hours bear to the hours of a full time worker but the part time worker must not receive less than that proportion warrants.
- Case law suggests that a tribunal should adopt a purposeful approach towards the construction of the legislation and make explicit reference to any relevant provision of the Guidance or Code, which has been taken into account in arriving at its decision. The tribunal considered pages 19 and 20 of the Guidance document, which is solely concerned with training. It is notable that the guidance states, "part-time workers should not lose out in their training simply because of their part-time status". The tribunal noted that one of the measures "which might be considered to support the career development of the part-time worker" included "paying the part-time worker (at their normal rate of pay) for the extra hours they attend outside their normal working hours."
- The respondent in this case argued before the tribunal that in fact part time lecturers were being favoured more than full time in the manner in which the pro-rata principle was applied as their percentage of student contact time remitted exceeded that allowed to the full time comparator. In relation to the national provisions before the ECJ in Botel it is notable that the court considered that "it was doubtful whether any wholly egalitarian method could be devised" that would not benefit one type of employee more than another. However the court appeared unable to tolerate adverse differential treatment that could not be justified within the parameters of the relevant directive. The tribunal considered that the strength of the respondent's argument had to be assessed in the context of case law and the factual situation.
- The tribunal did consider the argument posed by the respondent that in fact the claimant was in a better position than the full time counterpart as her percentage of teaching time was reduced proportionally by a greater amount than the full time counterpart. It was the opinion of the tribunal that this argument was not persuasive given that it appeared to ignore or recognise that part time employees usually work that pattern to suit the rest of their lifestyle a fact recognised by the ECJ in the Botel and Lewark cases. It appeared to this tribunal that the study requirements of the PGCFHE course had potential to impact to a greater extent on a part time worker. The tribunal looked not solely on the amount or percentage of time provided or remitted but the allowance granted both to part time or full time within the context of the specific purpose of the relevant contractual provision and the aims and objective of the relevant directive. It appeared to the tribunal that the percentage of time remitted to part time staff was always going to be greater proportionally to that of full time lecturers. However this argument cannot be successful when one considers the rationale posed by the respondent's witnesses for providing this benefit to staff namely to cover lecture/tutor time and some extra "to reflect the additional work required to be done to complete the course". The time remitted to the claimant merely covered the mandatory attendance aspects of the course. Unlike the full time comparator she received no remitted time toward "the study, coursework or preparation of assignments etc" as identified in the submission made on behalf of the respondent.
- In this case it is clear to the tribunal that the course attendance and study requirements were mandatory and identical for full time and part time lecturers. The qualification was for the benefit of both staff and students. The fees were not discharged on a pro-rata basis, as the respondent did not consider that appropriate. The pro-rata principle when applied by the respondent did not provide adequate remittance to permit the claimant to attend the initial mandatory tutor sessions. The remitted time had to be increased for at least 50% of the associate lecturers once the lecture sessions were increased in the second term of the course. The tribunal calculated that for any part time worker to qualify for the initial 36 hours student tutor time he/she would have had to be employed for at least 25% more hours than the claimant.
- Having analysed the evidence in relation to the issue before it and applying the relevant law to the findings of fact, the tribunal concludes that the respondent in this case when they applied the pro-rata principle found that it did not provide adequate remitted time to cover the mandatory tutor aspects of the course. In effect therefore the pro- rata calculation did not appear to make "suitable provision" as prescribed by the contractual provisions of Appendix 3. The respondent when it increased the remitted allowance of the claimant and a number of the other part time lecturers did so to cover the mandatory attendance aspects of the course. The respondent recognised the compulsory nature of the course by not differentiating on the payment of fees between part time and full time lecturers undertaking the PGCFHE course. The tribunal was doubtful that it could be appropriate not to apply the pro-rata principle to one aspect of a mandatory course namely the fees but to apply it to the other aspects of the contractual provisions that were relevant to the course. The tribunal considered such an approach undermined the efficiency of measures provided by the respondent to facilitate access by part time workers to vocational training.
- In Lewark the argument was placed before the ECJ, which had not been argued in Botel, namely that the staff Council posts were honorary unpaid office and the national law was drafted to protect the status and nature of that role. The ECJ in Lewark accepted that there was no disparity of treatment where a training course took place outside the working hours of both full time and part time employees as under national law no-one received compensation. Both full time and part time employees were treated the same in those circumstances. However it was of interest to this tribunal to note that the court stated "It was only where a training course takes place within working hours of full time employees but outside the individual working hours of part-time employees that the latter is disadvantaged because they are required to sacrifice their free time". The court's decision appeared to reflect their concern at the deterrent impact the unequal treatment might have on take up by part time employees in Staff Committees. While in this case the course was mandatory so a deterrent effect on take up might not seem applicable, there is still potential for a deterrent effect on persons applying for associate lecturer posts knowing that the qualification has to be obtained but with less assistance to part time lecturers than full time. Accordingly for all the reasons outlined in the paragraphs above the tribunal concluded in the first instance that the pro rata principle was not suitable or appropriate in the circumstances of this case.
- However if the tribunal is wrong in this conclusion the tribunal went on to consider as recommended by Richardson J the manner of the application of the pro rata principle and its result. The tribunal considered the use of the pro rata principle as a tool to assist in identifying whether less favourable treatment has occurred. In this case the result of the application of the pro-rata principle and its tinkering thereafter by the respondent to at least remit sufficient hours to cover the mandatory attendance aspects of the course resulted in the claimant receiving less favourable treatment than the full time comparator. The remitted time provision for the part time claimant made no remitted student contact allowance for the other aspects of the course, which were provided for in the allowance made for her full time comparator, namely the "some extra" identified by Alison Anderson "to reflect the additional work required to be done to complete the course" as identified in paragraph 3 (xi) of this decision.
- The treatment in regard to the remitted student contact time was only on the ground that the claimant was a part time worker. The final question to arise is whether the differential treatment is justified by the respondent on objective grounds.
- No argument or evidence was laid before the tribunal with regard to "justification" for such disparity of treatment. In Lewark the national state ran an argument of justification, including the argument that making the same pay provisions for all employees involved in staff committee work or training courses would in fact mean part time employees would receive a special advantage. The national state also argued that to make a payment for outside working hours related to staff committee work was "incompatible with the honorary nature of staff council membership". The German government contended that the difference in treatment of part time workers is inherent in the nature of part time work and any disadvantage is only an accidental consequence. The ECJ was very clear that where such an argument of justification was raised "the onus of proving differential justification lies with the employer who argues it exists". The conclusion of the ECJ was that such differential treatment was precluded by the directive save where objectively justified. The ECJ accepted in Lewark that "both economic reasons and reasons of social policy may be objectively justified grounds" but the alleged discrimination must be only consequential, based on a legitimate objective and proportionate. There is in the view of this tribunal obiter dicta in the decision that suggest different pay provisions for training organised within the working hours of part time employees would be more difficult to justify than where training is organised outside their normal working hours.
- The EAT decision in Davies considered the question of justification for disparity of pay provisions. The EAT stated "The issue is whether a part-time worker engaged on a full time course should receive full time pay?" The EAT answered the question in the affirmative as they "could not see a justifiable policy or aim for maintaining the inequality". In this case the respondent did not call evidence that difficulties were caused when it had to cope with increased mandatory attendance requirements in the second semester. It is clear the period of the course does not exceed nine to ten months of a particular academic year.
- Following those authorities detailed in the paragraphs above the tribunal is forced to conclude that the respondent has failed to provide any justification for the difference in treatment of the claimant as against that provided to her full time comparator. Accordingly the respondent in the arrangements made for the granting of remitted time to the claimant to complete a Post Graduate Certificate in Further and Higher Education unlawfully discriminated against the claimant contrary to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000. The respondent and claimant's representatives having agreed before the tribunal that the loss suffered by the claimant is the sum of £900.00 the respondent will be ordered to pay that sum to the claimant.
Adams v East Antrim Institute of Further and Higher Education [2008] NIIT 1221_07IT (07 February 2008)
The decision of the tribunal is that the respondent in the arrangements made for the granting of remitted time to the claimant for the purpose of obtaining a Post Graduate Certificate in Further and Higher Education unlawfully discriminated against the claimant contrary to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000. The correct name of the respondent is as detailed above. The respondent is ordered to pay the agreed sum of £900 to the claimant.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Members: Mr Johnston
Mr Lowden
Appearances:
CLAIMANT: Mr G Grainger, Barrister-at-Law, appeared on behalf of the claimant.
RESPONDENT: Ms A Finnegan, Barrister-at-Law, represented the respondent instructed by the Education and Library Board's Solicitors.
The Issues
Sources of Evidence
The Facts
(i) The parties agreed that the claimant at all times material to these proceedings was employed as an Associate Lecturer at the East Antrim Institute of Further and Higher Education. The claimant was a part time employee engaged under a contract of employment by the respondent amounting to 12 hours a week. She was a part time worker within the remit of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 hereinafter referred to as the Regulations. The agreed comparator was a Barbara McAuley who was employed on a full time basis of 32 and a half contractual hours by the respondent under a contract of employment within the meaning of the Regulations. Both the claimant and Ms McAuley were employed as lecturers in Essential Skills and on the same terms and conditions of employment. Those terms and conditions were contained in a document included in the bundle of agreed documents at pages 34 to 50 identified as the Contract for Full-time Permanent Lecturers (hereinafter referred to as the Contract). It was agreed between the parties that Ms McAuley is a "comparable full time worker" engaged in "broadly similar work" for the purposes of the Regulations.
(ii) The claimant and her comparator were both required to undertake a training course, namely the Post Graduate Certificate in Further and Higher Education (the PGCFHE qualification) at the University of Ulster in the academic year 2006/2007. Their continued employment depended upon obtaining this qualification within three years of commencing employment. The qualification was a mandatory requirement under their contract of employment. Both the claimant and the comparator undertook exactly the same course and were required to complete the same coursework to the same standard. They both incurred the same fees for attending this course and the respondent paid the full course fees for the claimant and the comparator.
(iii) The respondent allowed all staff that were undertaking this PGCFHE a reduction in their contractual student contact time without loss of pay. This reduction was known as "remitted" time. Full time lecturers were granted three hours remitted time. The respondent claimed that part-time lecturers were allowed a proportionate reduction in their student contact time in accordance with paragraph 2 (d) of Appendix 3 and paragraph 1 of Appendix 5 of the Contract. The claimant's proportionate allowance was calculated by the respondent. The application of the pro-rata principle to the claimant's weekly hours resulted in a calculation that the claimant was entitled to receive 28 hours remitted time. This provision was not adequate to cover the directed 36 Teacher Tutor hours. The respondent initially increased the claimant's remitted time from 28 hours (pro rata calculation) to 36 hours, as the calculation did not result in a level of hours that covered the minimum hours required to attend the mandatory tutorial element of the course. In effect this meant the claimant was granted initially one hour per week remitted time.
(iv) The PGCFHE course requirements were changed in the second semester to require increased lecture attendance. Early in 2007 when the University required participants in the course to attend additional lectures at the University the respondent increased the claimant's initial 36 hours remitted time. The respondent in those circumstances increased the claimant's remitted time, by an extra hour a week, to two hours per week from January 2007. In practice this meant that the claimant who had already been timetabled for certain classes, undertook those classes as additional hours over and above her contractual period, and was paid accordingly for those classes.
(v) The full time comparator Ms McAuley did not obtain any increase in her remitted time as a result of the increased lecture time in the course. It appeared to the tribunal, using the same calculation utilised by the respondent, that for any associate lecturer to meet the initial 36 hours minimum requirement of remitted time, he/she would need to be employed on a contract which required the lecturer to work 25% more contractual hours than those which applied to the claimant. Page 62 of the agreed bundle of documents contained details of the total remitted time allowed to all ten staff undertaking the PGCFHE. It is clear from the figures provided that only three were full time lecturers thereby receiving 108 remitted hours. Only two other lecturers received up to two thirds of the remitted time of the full time lecturers. The claimant was the only associate lecturer whose initial remitted time was insufficient to cover the directed weekly tutorial. It appeared to the tribunal from the information provided by the respondent that at least 50% of the lecturers received an increase in their remitted allowance once the increased lecture time was commenced in the second semester.
(vi) The claimant instigated a formal grievance regarding the disparity in remitted time between her and comparable full time lecturers on 7 March 2007.
(vii) The respondent held a meeting with the claimant in respect of her grievance and responded in writing on the 18 April 2007. The respondent's view was that the claimant's contract provided that full time staff "will receive three hours remitted time for the duration of the course. One hour of this remitted time will be directed/timetabled with the teacher tutor (Gwen Brown) on Tuesdays from 4pm-5pm. Associate Lecturers undertaking this programme of study have remitted time which is pro rata to a full time contract. Those Associate Lecturers whose remitted time falls short of the 36 hours required for directed time with the Teacher Tutor will have their remitted time increased to a total of thirty six hours to cover the directed study time." At the time the respondent wrote this letter the claimant's remitted time had been increased from late January/early February 2007 by an additional hour a week. The respondent referred to this fact in their response to the claimant's grievance. The letter advised that the allocation of remitted time was a "sector approach" agreed at the Employee Relations Forum on 23 February 2006. At the hearing it was agreed that this Forum was an Employer representative body and did not involve an agreed approach with the relevant trade unions.
(viii) The claimant appealed the outcome of her grievance hearing but the appeal held on 22 May 2007 was unsuccessful. The claimant specifically made assertions at the appeal hearing that any "sector approach" had been overtaken by legislative provisions contained in the Regulations pursuant to Directive 97/81/EC known as the Part Time Work Directive. The appeal panel concluded, without setting out the reasons for their conclusion that the "Institute had acted in a fair and responsible manner" in the arrangements made for remitted student contact time for staff pursuing the PGCFHE.
(ix) The contract for full time permanent lecturers commences with the words "This agreed contract applies to all full time permanent lecturers employed at East Antrim Institute of Further and Higher Education". There is a notation referring to a footnote after the words full time permanent lecturers, which explains that "as defined in Appendix 5".
(x) Appendix 5 is headed "Definitions and terms". Paragraph 1 states "References to full time permanent lecturers includes all full time permanent academic staff, those lecturers on pro rata contracts and temporary lecturers paid as though employed in a permanent capacity. Terms and conditions for these lecturers shall be pro-rata".
(xi) Appendix 3 of the Contract addressed the areas and conditions for "Reductions in Student Contact Time". Clause 1 of Appendix 3 provides that the purpose of reduction in student contact time "will be such as to enable you to be effective in the overall discharge of your professional duties". Under cross-examination Alison Anderson the respondent's human resources manager agreed that the substance of the terms and conditions of employment for all permanent full time and associate lecturers in colleges of further and higher education in Northern Ireland were the same. The claimant agreed in cross examination with the rationale put forward by the respondent that the remitted time for full time lecturers of 3 hours per week was inadequate for the entirety of work required to obtain the qualification. Alison Anderson gave evidence that the remitted time for full time lecturers covered lecture/tutor time and some extra "to reflect the additional work required to be done to complete the course". As the claimant did not challenge the respondent's contention that the motive behind the remitted time was purely to provide recognition of the study required and support to staff while working to achieve the qualification, the tribunal accepted Ms Anderson's evidence as to the purpose of the provisions. It was not disputed that the remitted time allowed to full time staff could never reflect the time required by staff to complete the work involved on the PGCFHE course.
(xii) Paragraph 2 of Appendix 3 reads
"A reduction in student contact time shall be given to you for duties or responsibilities or privileges which are the subject of agreement or legislative provision.
These include:-
(a) Travel time in accordance with Appendix 2.
(b) Trade Union activities in accordance with College Employer' forum Circular 2000/08 ..
(c) Induction, on the basis of the ..
(d) Required attendance at an approved training course in accordance with paragraph 2.1 of this contract. Suitable reduced student contract time shall be allocated, the maximum being the full student contact time which, from the lecturer's timetable, would have been carried out if the lecturer were not absent, or one half of the actual duration of the course, whichever is the greater;
(e) Duties in connection with the Health and Safety at Work (Northern Ireland) Order 1978.
(xiii) There was disagreement between the parties as to which of the provisions detailed in the paragraph above were subject to the pro-rata principle. As a result of the evidence heard the tribunal concluded that in respect of those duties detailed at paragraph 2 (a), (b) and (e) the pro rata principle was never applied by the respondent because it essentially could not be applied to those activities either as a result of law or practicality. So far as induction was concerned there was no evidence that such provision had ever been utilised so it was not possible to conclude that the pro rata principle had or would apply to that provision. It appeared to the tribunal that such application was extremely unlikely given the terms of the provision and the need it was aimed at addressing. In effect this meant that the only provision, which the respondent arguably applied the pro rata principle to in respect of reductions in student contact time, was that aimed at required attendance at approved training courses. The PGCHFE was required to be completed by virtue of legislation. Clause 9 (5) of the contract, which addresses student contact time, provides "You may be entitled to a reduction in student contact time to enable you to undertake other duties and responsibilities as specified in Appendix 3". Unlike the provision in the foreword, which adds a footnote, "Full time permanent lecturer" is as "defined in Appendix 5"; there is no equivalent footnote in clause 9 or in Appendix 3 itself to expressly provide that the provision for reduction of student contact time will be pro-rata.
(xiv) Clause 17(1) of the contract states, "Facilities for professional development may be available subject to relevant resource constraints. Such facilities shall be in accordance with the policy of the Institute which will address the professional needs of staff as well as the needs of the curriculum and the Institute".
(xv) The attendant requirements for the PGCFHE would have amounted to four hours per week save that both Ms McAuley and the claimant obtained exemption to attending certain modules in the first semester due to qualifications already obtained. However both had the same attendance requirements throughout the course, which at an early stage in the second term amounted to three hours per week at the University and one hour per week with the internal tutor at the Institute. The tribunal when referred to the calculation resulting from the application of the "pro-rata" principle to the claimant's contractual hours which was 6/23 x 3 x 36, noted it resulted in an allowance of 28 hours remitted time. This was woefully insufficient to enable the claimant to fulfil her responsibility to attend the weekly directed study time with the internal tutor at the Institute or at the University. Both the claimant and her comparator obtained their qualification in June 2007.
Applicable Law
(1) "In respect of employment conditions, part time workers shall not be treated in a less favourable manner than comparable full time workers solely because they work part time unless different treatment is justified on objective grounds".
(2) Where appropriate the principle of pro rata temporis shall apply.
(3) The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice.
"5 Less favourable treatment of part time workers
(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 rata principle shall be applied unless it is inappropriate.
(4) ...
"1(2) In these Regulations -
"pro rata principle" means that where a comparable full time worker receives or is entitled to receive pay or any other benefit, a part time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full time worker;
(3) In the definition of the pro rata principle and in regulations 3 and 4 "weekly hours" means the number of hours a worker is required to work under his contract of employment in a week in which he has no absences from work and does not work any overtime or, where the number of such hours varies according to a cycle, the average number of such hours."
Conclusions in light of the facts and law
Chairman:
Date and place of hearing: 6-7 November 2008, Belfast.
Date decision recorded in register and issued to parties: