Zero hours working and part-time discrimination claims
A worker employed as an associate lecturer under a zero-hours contract could compare himself with an academic lecturer on a full-time contract of employment for the purposes of a claim under the Part-time Workers Regulations. The Employment Appeal Tribunal found that they were employed under the same type of contract.
What is needed for a part-time discrimination claim?
Part-time workers have a right not to be treated less favourably than comparable full-time workers, unless the difference in treatment can be objectively justified. To succeed in a claim under the Part-time Workers Regulations an individual must:
- Establish that they are a part-time worker;
- Identify a comparable full-time worker;
- Establish that they have been less favourably treated as regards the terms of their contract or by being subjected to a detriment; and
- Show that the treatment was on the grounds that they worked part-time.
If that is all proved, the onus shifts to the employer to show objective justification for the less favourable treatment.
A full-time worker can be an appropriate comparator for a part-time worker if they are:
- Employed by the same employer on the same type of contract and at the same establishment; and
- Engaged in the same or broadly similar work (looking at qualifications, skills and experience where relevant).
The legislation makes it clear that apprentices are not employed on the same type of contract as non-apprentices; and workers are on a different type of contract than employees. No more guidance is provided.
Who can a zero-hours worker compare themselves with for a part-time working claim?
In Roddis v Sheffield Hallam University, the Employment Appeal Tribunal found that Mr Roddis, an associate lecturer on a zero-hours contract, was employed on the same type of contract as Mr Leader, a full-time permanent academic lecturer. They were both engaged on contracts of employment (with notice periods; and with statutory protection from unfair dismissal). A zero-hours contract does not of itself constitute a different type of contract – this would defeat the purpose of the Part-time Workers Regulations. As a result, Mr Roddis’ part-time workers claim could proceed.
There were clear differences between the contracts of employment. Mr Roddis’ hours are defined by the offers of work and whether he accepts them (which he had done over 30 times). Mr Leader’s contract requires him to work such hours as are reasonably necessary to fulfil his duties. However, workers are not engaged on different types of contract under the Regulations just because their terms and conditions are different.
The case will now be sent back to the tribunal to look at whether Mr Roddis and his comparator were engaged in the same or broadly similar work and, if so, whether there was justification for any less favourable treatment.
Some people working zero-hours are employees; others are engaged as casual workers. It depends on both the terms of the contract and what happens in practice, particularly the degree of mutuality of obligation (Workbox subscribers can find out more at the pages on Zero Hours and Employment Status). Therefore, the appropriate comparator for an individual working zero-hours could be either an employee or a worker, depending on the facts.
Please get in touch if you would like more information on zero-hours or part-time working, or to discuss a particular case.
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