Can an employee compare their zero-hour contract with a full-time contract for the purposes of a part-time workers discrimination claim?
In a recent case decided by the Employment Appeal Tribunal the question of zero-hour contracts and discrimination was considered. The case is Mr P Roddis v Sheffield Hallam University.
Part-Time workers, under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, are protected from unjustified and less favourable treatment.
In order to succeed in a claim under the Part-Time Workers Regulations an employee must first establish that they are a part-time worker, and then identify an actual full-time worker comparator. The comparator must be comparable in four respects:
(1) be employed by the same employer with;
(2) the same contract type;
(3) engaged in the same or broadly similar work, and finally, geographically by;
(4) being based at the same establishment.
The categories of part time workers are defined broadly within the regulation, allowing many different terms and conditions in part-time employment contracts to be compared with full-time workers.
A zero-hours contract is not, of itself, a type of contract. It is therefore a decision of the Employment Tribunal as to whether a person satisfies the requirements of the regulations.
Mr Roddis was employed by Sheffield Hallam University (the ‘University’) as an associate lecturer with a zero-hour contract. As a result, Mr Roddis had no guaranteed hours from the University.
Various circumstances at work led Mr Roddis to make a claim for unfair dismissal, age discrimination and less favourable treatment, comparing himself with a full-time lecturer working under a permanent contract. In the course of proceedings Mr Roddis withdrew the age discrimination claim, and it was found that his contract with the University had not been terminated and therefore his unfair dismissal claim was dismissed by the Tribunal.
In respect of the claim for less favorable treatment this was struck out by the Tribunal at a preliminary hearing, who stated that he was not ‘employed under the same type of contract’ as his comparator, due to the zero hours element of his contract.
Mr Roddis appealed the decision in the Employment Appeal Tribunal.
The Employment Appeal Tribunal found that the contracts of Mr Roddis and his comparator, Mr Leader, were of a similar type, with many similar characteristics, including the protection of notice periods. They had also both gained protection from unfair dismissal due to length of service. Since no other difference had been found by the Tribunal, both lecturers had to be working under the same type of contract.
The Appeal Tribunal noted that ‘if the difference in hours meant the contracts were not comparable, then the 2000 regulation would be self-defeating.’
The Appeal Tribunal noted that the difference between this case and previous cases with zero hour contracts was that the contract did not enable him to work only if he pleased, but if he accepted an offer ‘he was committed to providing a course for the academic year or whatever other length of the course, including all the work done in connection with the teaching including the preparation for the scheduled teaching, setting and marking of projects and assignments and related administration and various other matters’.
The case will now go back to the Employment Tribunal for them to decide if the University had treated Mr Roddis less favourably with regards to the terms of his contract or by being subjected to any other detriment, and the Tribunal must be satisfied that the identified less favourable treatment is on the grounds that Mr Roddis is part-time.
Points to note
This decision demonstrates clearly that a zero-hour contract can, in some circumstances, be compared with that of a full-time contract.
This case demonstrates the comparable protection that is developing for those on zero-hour contracts and no doubt we can expect future cases to discuss and develop the status of zero-hour workers.
Action to take
1. If you use zero-hour contracts for your employees reconsider if this is the most appropriate way to contract with them.
2. Ensure all managers are aware of the protection from unfair treatment and the requirements to treat them fairly compared to full time colleagues.
3. Ask an expert Employment Solicitor or Adviser to review your contracts if you are unsure whether they are appropriate.