It is increasingly common for businesses to employ casual staff on zero hours contracts – contracts that do not guarantee any hours of work. Can they compare themselves to full-time colleagues to establish less favourable treatment?
The case of Roddis v Sheffield Hallam University provides some useful guidance.
A part-time worker has the right to be treated no less favourably than a comparable full-time worker in relation to certain employment-related matters under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
In order to establish less favourable treatment, a part-time worker must first identify an actual full-time worker as a comparator (rather than a hypothetical one).
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
- Working or based at the same establishment as the part-time worker.
Once the part-time worker has done this, they will only be able to bring a claim if they can show that their contractual terms are less favourable – for example, they receive less pay or receive fewer paid holidays, or have been subjected to any other detriment – such as being dismissed – because they work part-time. If a worker can jump through these hoops, their employer has to objectively justify its actions.
Mr Roddis entered into a zero hours contract of employment with the university to provide teaching to students as and when required. After some years, he argued that he was being treated less favourably than a full-time colleague engaged under a permanent contract of employment.
The tribunal said that Mr Roddis’s zero hours contract was a different type of contract to that of his comparator and it rejected his claim.
This decision was overturned by the Employment Appeal Tribunal. It said that a zero hours contract does not – by itself – amount to a type of contract. The contracts were broadly comparable – both men were employees with permanent contracts (in the sense that both had worked for the university for a number of years and could claim unfair dismissal). The case was remitted back to the tribunal to determine whether the other aspects of the test were met.
Implications for businesses
Mr Roddis was an employee, not a worker. If he had been engaged as a worker, he would not have been able to compare himself with his colleague who was an employee.
That said, individuals can challenge their status, and, even if an individual is a worker at the start of the relationship, they can transition into an employee if the nature of the relationship changes (as, over time, it can do).
Organisations therefore need to be very careful when entering into contracts with casual staff and will need to re-examine these at regular intervals to make sure the contractual terms still reflect the reality of their working relationship.