In the recent case of Forth Valley Health Board v. Campbell, the Employment Appeal Tribunal (EAT) considered whether a part-time worker was being treated less favourably than a full-time worker by not being given a 15-minute paid break when working less than a six-hour shift. It is unlawful to treat a part-time worker less favourably than a comparable full-time worker.
In this case, the claimant was a phlebotomist who had worked for the respondent for just over two years. The claimant was a part-time employee, working on average 16 hours per week. When the claimant worked four-hour shifts on weekdays, he would not receive a paid break. However, when he worked a six-hour shift on weekends, he would receive a 15-minute paid break. This was in line with the respondent’s practice that workers received a paid 15-minute break when they worked shifts of six hours or more. However, the claimant argued that this was unlawful as full-time employees received a paid break during all the shifts that they worked.
The Employment Tribunal (ET) decision
The ET agreed with the claimant at first instance and found that his claim of less favourable treatment had been established. In making this decision, the ET rejected the respondent’s argument that the reason for the claimant not being given a paid break was the length of the shift in question and not his status as a part-time worker. The ET concluded that the treatment of the claimant could not be justified on objective grounds. Therefore, the claimant’s claim succeeded.
The respondent appealed this decision, claiming that the ET had incorrectly considered whether the treatment of the claimant was “on the ground” that he was a part-time worker or not. This appeal was allowed.
The EAT decision
At the EAT, the respondent argued that the ET judge had erroneously applied “but for” causation to the question of whether the detrimental treatment of the claimant was “on the ground” that he was a part-time worker. The respondent argued that, if the applicable statutory test had been applied correctly, the ET would have concluded that less favourable treatment was only established if the worker’s part-time status was the sole reason for not being given a paid 15-minute break.
The EAT agreed with the respondent and dismissed the claim. The EAT held that there was no basis in law on which the ET could properly have concluded that the less favourable treatment of the claimant was “on the ground” that he was a part-time worker. Conversely, the claimant was treated less favourably due to the length of particular shifts that he worked. This was made clear by the fact that the claimant did receive a paid 15-minute break when he worked shifts that were over six hours in length.
The impact on employers
This case, whilst being relatively straightforward in its facts, should serve as a reminder to employers that part-time and fixed-term workers should not be subjected to less favourable treatment than their full-time and permanent counterparts carrying out a largely similar role.
As demonstrated in Forth Valley Health Board v. Campbell, in order for any claim in this regard to be successful, the less favourable treatment must be as a direct result of the fixed-term/part-time status and not for any other reason. Should an employer treat an employee less favourably as a direct result of their fixed-term/part-time status, they must demonstrate that this treatment is objectively justified.
Employers should be alert that any opportunities, benefits or decisions in relation to permanent full-time staff are fully considered and applied (where possible) to fixed-term and/or part-time staff to avoid falling foul of the regulations.