The EAT has held that, in order to succeed with a claim for less favourable treatment under the Part-time Workers Regulations, a claimant must show that he or she has been less favourably treated than a real (rather than hypothetical) full-time comparator on the grounds that (but not solely because) they are a part-time worker (Carl v University of Sheffield).
Ms Carl, a part-time employee who taught shorthand in the journalism department at the University of Sheffield claimed that she had been treated less favourably than a full-time worker, Ms McClelland, or alternatively, than a hypothetical comparator being a "generic teacher" in the University. Her claim failed. The EAT held that Ms McClelland was not a true comparator because she was neither employed under the same type of contract nor carrying out broadly similar work. The wording of the Part-time Workers Regulations means that claimants cannot compare themselves to a hypothetical comparator. The EAT also went on to decide that it was not necessary, in order to succeed with a claim, for the less favourable treatment to be solely on the ground of part-time status; it is sufficient that it is the "effective and predominant cause".
Impact on employers
- Employers can take some comfort from the confirmation that, unlike other forms of discrimination, for a part-time worker to succeed with a claim under the Regulations, the claimant must be able to identify a real comparator.
- An employer should be aware however that even if they can point to a number of (non-discriminatory) reasons for treating part-time workers differently from full-time workers, they might still be held liable for discrimination against a part-time worker if one of the reasons relates to their part-time status. Any variations in treatment should have sound justification.
- In this case the EAT chose to follow the decision of the EAT in England in Sharma v Manchester City Council rather than that of the EAT in Scotland in Gibson v Scottish Ambulance Service, which held a claimant's part-time status has to be the sole reason for the less favourable treatment, a harder test for an individual to meet. The Court of Session subsequently approved the decision in Gibson (in the case of McMenemy v Capita Business Services). Tribunals in Scotland are bound by decisions of the Inner House of the Court of Session and therefore it seems that there is a difference in the test an employee must satisfy depending on whether the claim arises in Scotland or in England.