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Matthews and others (Appellants) v. Kent and Medway Towns and Fire Authority and others (Respondents)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Matthews and others (Appellants) v. Kent and Medway Towns Fire Authority and others (Respondents)
 UKHL 8
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Baroness Hale of Richmond. For the reasons they give, with which I agree, I would allow this appeal and make the order proposed by Baroness Hale.
LORD HOPE OF CRAIGHEAD
2. The appellants in this appeal are retained fire fighters. They claim that they have been unlawfully discriminated against as to their conditions of employment as compared with those of whole-time fire fighters. The claim is made under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). Regulation 5(1) provides that a part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker. But before that regulation can be applied there are a number of definitions laid down by the Regulations that need to be satisfied. It is agreed that retained fire fighters are workers as defined by regulation 1(2) and that they are part-time workers for the purposes of the Regulations within the meaning of regulation 2(2). It is also agreed that whole-time fire fighters are full-time workers for the purposes of the Regulations within the meaning of regulation 2(1). The question is whether whole-time fire fighters are comparable full-time workers within the meaning of regulation 2(4). Unless this definition is satisfied it will not be possible to make the comparison referred to in regulation 5(1).
3. I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. As she explains, regulation 2(4) sets out the conditions that must be satisfied in order to determine whether a full-time worker with whom a part-time worker seeks to be compared is a comparable full-time worker. Among other things, both workers must be employed by the same employer "under the same type of contract": regulation 2(4)(a)(i). And they must both be engaged "in the same or broadly similar work" having regard, where relevant, to whether they have a similar level of qualification, skills and experience: regulation 2(4)(a)(ii).
4. Directions as to the situations in which full-time and part-time workers are to be regarded as being employed under different types of contract for the purposes of regulation 2(4) are given in regulation 2(3). A list is given in paragraphs (a) to (e) of five kinds of employee or worker whose contracts are to be regarded as of a different type. It follows that, where both workers are employed under contracts that answer to the description given in the same paragraph, they are both to be regarded as employed under the same type of contract for the purposes of regulation 2(4). They are workers as between whom, assuming that the other requirements of regulation 2(4) are satisfied, it is not permissible for the employer to discriminate unless he can justify this on objective grounds under regulation 5(2)(b).
5. It is agreed that retained fire fighters and whole-time fire fighters are both employed under a contract that is neither for a fixed term nor a contract of apprenticeship. This is a type of contract of the kind described in paragraph (a). There is however one other paragraph in regulation 2(3) that has to be considered. Paragraph (f) adds to the list -
There is a difference of opinion among your Lordships as to whether the Court of Appeal were right to hold that retained fire fighters were employees of the type described in paragraph (a), not workers of the description given in paragraph (f). The question is one of construction. What does paragraph (f) mean, when its words are construed according to their ordinary meaning in the context of the regulation read as a whole, having regard to the purpose of the regulation? This is a question of general public importance too. The answer that is given to it will affect all part-time workers who seek the protection of the Less Favourable Treatment Regulations, not just retained fire fighters.
6. It is convenient to look first at the purpose of regulation 2(3). As its opening words make clear, its function is to provide a definition of what are to be regarded as different types of contract for the purposes of paragraphs (1), (2) and (4) of the regulation, all of which direct attention to the question whether workers are employed by the employer under the same type of contract. Clause 3.2 of the Framework Agreement annexed to Council Directive 97/81/EC defines the term "comparable full-time worker" for the purposes of the agreement as a full-time worker in the same establishment having the same type of employment contract or relationship who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills. This is the clause in the Framework Agreement to which regulation 2(4) gives effect.
7. There is no separate definition in clause 3 of the Framework Agreement of what is meant by the expression "the same type of contract". But one can derive from the way clause 3(2) is framed that the question whether a full-time worker is employed under the same type of contract as a part-time worker is to be approached broadly, having regard to the purpose of the agreement set out in clause 1. This is to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work, to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organization of working time in a manner which takes into account the needs of employers and workers. The use of the word "type" fits in with this approach. When one thinks of a type of person or a type of car, for example, one looks for a broad characteristic that separates one type from another. One ignores the many variations and differences within each type and looks instead for something that brings them all together within the same category. An over-precise view as to what makes one type of contract different from another would tend to undermine the purpose of the agreement.
8. The wording of the first five paragraphs of regulation 2(3) adopts this approach. The descriptions that are given here are broad. They do not suggest that a contract can be treated as being of a different type from another just because the terms and conditions that it lays down are different. Nor do they suggest that a contract can be treated as being of a different type just because the employer chooses to treat workers of a particular type differently. The underlying purpose seems to be to ensure that it is not left to the employer to decide whether or not to treat persons falling within the same category differently. On the contrary he is not permitted to discriminate between them if they fall within the same category, assuming that the other parts of regulation 2(4) are satisfied, unless he can justify the different treatment on objective grounds under regulation 5(2). By listing the various categories in the way it does, it suggests that all that one needs to do in order to satisfy the requirements of regulation 2(4)(a)(i) is to find that both workers are employed under contracts that fit into one or other of the five listed categories. The question is whether paragraph (f) departs from this approach. Does it add something new, or does it require one to revisit the previous categories?
9. In my opinion the wording of paragraph (f) suggests that it is adding something new. In its opening words it refers to "any other description of worker" [my emphasis]. These words, on their own, seem to indicate that we are being asked here to examine a type of worker who is different from any of those previously mentioned. It then goes on to qualify the opening words. But it does so in a way that does not take anything away from the initial impression that we are dealing here with a type of worker, or perhaps various types of workers, who are different from those previously mentioned.
10. Paragraph (f) tells us that we are dealing now with any other description of worker that it is reasonable for the employer to treat differently from other workers, "on the ground that workers of that description have a different type of contract." It is the fact that they have a type of contract which is different from other types of contract that enables the employer to treat them differently, if it is reasonable for him to do so. This wording also permits workers of several different descriptions to be treated differently from each other on this ground under this paragraph. It is the fact that they have a different type of contract, not that the terms and conditions of their employment are different, that enables the employer to treat them differently from other workers. The breadth of the meaning to be given to the expression "type of contract" is indicated by the categories mentioned in the preceding paragraphs, which are defined broadly in a way that allows for a wide variety of different terms and conditions within each category. This protects the part-time worker from terms and conditions that treat him less favourably in comparison with those that apply to full-time workers in the same category unless the difference of treatment can be objectively justified.
11. Everyone agrees that it is difficult to think of a type of contract which is different from those mentioned elsewhere in the list. But I do not think that this prevents paragraph (f) from being treated as adding something new to the list which will not be reached if a worker falls into one or other of the previous categories. It is sufficient to say, to give it some meaning, that it is there to fill any gaps that may have been left, as a long stop or residual category. The list as a whole makes it unnecessary to carry out the kind of fact-finding exercise that my noble and learned friend Lord Mance envisages. Its purpose, after all, is simply to identify in a broad and simple fashion the types of contract that enable workers to be treated as comparable workers for the purpose of applying the less favourable treatment rules that Part II of the Regulations identifies.
12. For these reasons, and those given by Baroness Hale with which I entirely agree, I would hold that the Court of Appeal were right on this point. This makes it necessary to consider whether the other part of the definition in regulation 2(4)(a)(ii) is also satisfied. Are retained fire fighters and whole-time fire fighters engaged in "the same or broadly similar work", having regard to whether they have a similar level of qualification, skills and experience?
13. The employment tribunal heard evidence on this issue during a hearing which extended over 9 days in November 2001. A further day was needed in February 2002 for evidence on a variety of issues on pensions and 5 more days were taken up with a consideration of the evidence. The decision which the tribunal delivered on 22 July 2002 was commendably detailed and clear in its reasoning. The question which they had to decide was essentially one of fact. The employment appeal tribunal found no error of law in its decision, and the Court of Appeal were not persuaded that the decision was perverse or that the tribunal misdirected itself.
14. The wording of regulation 2(4)(a)(ii) identifies the matters that must be inquired into. One must look at the work that both the full-time worker and the part-time worker are engaged in. One must then ask oneself whether it is the same work or, if not, whether it is broadly similar. To answer these questions one must look at the whole of the work that these kinds of worker are each engaged in. Nothing that forms part of their work should be left out of account in the assessment. Regard must also be had to the question whether they have a similar level of qualification, skills and experience when judging whether work which at first sight appears to be the same or broadly similar does indeed satisfy this test. But this question must be directed to the whole of the work that the two kinds of worker are actually engaged in, not to some other work for which they may be qualified but does not form part of that work.
15. It is important to appreciate that it is the work on which the workers are actually engaged at the time that is the subject matter of the comparison. So the question whether they have a similar level of qualification, skills and experience is relevant only in so far as it bears on that exercise. An examination of these characteristics may help to show that they are each contributing something different to work that appears to be the same or broadly similar, with the result that their situations are not truly comparable. But the fact that they may fit them to do other work that they are not yet engaged in, in the event of promotion for example, would not be relevant.
16. The key passages in the tribunal's decision are to be found in paragraphs 152-154. They referred in paragraph 152 to their conclusions of fact about the particular methods of working of the retained fire fighter service and the way the whole operation had been geared to focus the working duties of the retained fire fighter substantially on the emergency call out fire fighting role. They then said that it was not in dispute that the fire fighting role was the central and most important job function of the retained fire fighter and a major part of the job role of the whole-time fire fighter. But they also found that there were measurable additional job functions which were carried out by whole-time fire fighters. On that ground alone they held that the job of the whole-time fire fighter was a "fuller wider job" than that of the retained fire fighter.
17. In paragraph 153 the tribunal found that, because of entry standards, probationary standards, probationary training and ongoing training, there were material differences in the level of qualification and skills between the retained fire fighter and the whole-time fire fighter. As for experience, they found that retained fire fighters who put in a large number of hours could develop this characteristic to an impressive level. They set out their overall conclusion in paragraph 154, putting together the fuller wider role and the higher level of qualification and skills. They held that the retained fire fighter could not establish comparability with his full-time counterpart.
18. It seems to me that there is a weakness in the way the tribunal dealt with differences in the level of qualification and skills between the two kinds of worker. It would not be right to subject the tribunal's reasoning to an unduly critical analysis, especially in view of their assurance in paragraph 5 that they did in the end stand back and look at the whole picture. But I think their reasons show that they failed to appreciate that the question whether the two kinds of worker had a similar level of qualification, skills and experience was relevant only in so far as it bore on the exercise of assessing whether the work that they were actually engaged in was the same or broadly similar. They did not ask themselves whether these characteristics showed that they were each contributing something different to that work. They treated the fact that there were differences in the levels of qualification and skills as an additional factor leading to the conclusion that comparability could not be established, without assessing the extent to which these differences affected the work that the two different kinds of worker were actually engaged in. It would not have been impossible for them to have come to the conclusion that these differences did indeed affect the work that they were engaged in, for the reasons that my noble and learned friend Lord Carswell indicates. But they did not address the issue in that way. In my opinion this defect in their reasoning amounted to a misdirection on a point of law.
19. This criticism on its own does not lead to the conclusion that the decision as a whole is defective. The appellants have to show that it was not open to the tribunal to conclude, as they did in paragraph 154, that the work of the whole-time fire fighter was not comparable with that of the retained fire fighter. It has not been suggested that the tribunal were not entitled to find that there were differences between the work done by these two groups of workers, with the result that the work they were engaged in was not "the same" work. The question whether it was "broadly similar" was, as these words indicate and my noble and learned friend Lord Carswell points out, a question of fact and degree which one would have thought the tribunal having heard the evidence were best placed to answer.
20. I am not confident however that the tribunal gave sufficient weight to the extent to which the work on which both groups of fire fighters were engaged was "the same" work. The painstaking way in which they addressed themselves to the various differences was a necessary and admirable reaction to the way the evidence was presented and the issues were argued before them. But it led them to concentrate on the differences and not to assess the weight that ought to be given to the similarities. Their conclusion that the job of the whole time fire fighter was a fuller wider job than that of the retained fire fighter was not, as they appear to have thought, the end of the exercise. They still had to address the question posed by the statute which was whether, notwithstanding the fact that the job of the whole time fire fighter was a fuller and wider job, the work on which both groups were engaged could nevertheless be described as broadly similar.
21. In paragraph 154 the tribunal held that, putting together the fuller wider role and the higher level of qualification and skills which they found to be the inevitable inference from the evidence before them, the necessary comparability could not be established. The way this sentence is expressed indicates to me that they did not take the final and vital step of addressing their minds, in the light of these findings, to the test laid down by the statute. For these reasons, and those given more fully by Baroness Hale with which I agree, I think that the decision which they reached was defective and must be set aside. I would allow the appeal and make the order which she proposes.
BARONESS HALE OF RICHMOND
22. It may not be generally appreciated that a large proportion of the operational fire-fighters in the United Kingdom are part-timers, 'retained' to turn out when required, rather than whole-timers, working on a shift system. According to the 2001/2 estimates supplied to us, there were around 18,300 retained fire-fighters and 38,600 whole-time fire-fighters in the whole country, but the proportion of part-timers was much higher in the shire areas, Wales, Scotland and Northern Ireland, than in the metropolitan areas. More fire stations are manned by retained fire-fighters than by whole-timers. It is clear, as a recent Audit Commission Report put it, that retained fire-fighters provide cover for large areas of the country. Their working patterns and some of their terms of employment are significantly different from those of the whole-timers. The issue for us is whether their employment falls to be compared with that of the whole-timers for the purpose of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR).
23. This depends upon the answers to two questions. First, are both whole-timers and part-timers 'employed . . . under the same type of contract'? Second, are they 'engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience'? The Employment Tribunal and the Employment Appeal Tribunal answered both questions in the negative. The Court of Appeal answered the first question in the positive, but the second in the negative. The fire-fighters, supported by their Union, appeal to this House and both questions are in issue.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
24. The Regulations were made under section 19 of the Employment Relations Act 1999, which required the Secretary of State to make regulations for the purpose of securing that people in part-time employment were treated no less favourably than people in full-time employment. Without prejudice to that general objective, the regulations were also to comply with the United Kingdom's obligations under Council Directive 97/81/EC, which required member states to implement the annexed Framework Agreement on part-time work. The flavour of the Directive is summed up in Recital 5:
In other words, more flexible employment practices can be good both for employees and for business. General consideration 5 preceding the Framework Agreement emphasises the point:
The object, clearly, was to encourage more flexible working patterns but not at the cost, either of proper protection for the workers or of competitiveness for the employer.
25. Clause 4.1 of the Agreement provides for the principle of non-discrimination:
This is reflected in regulation 5(1) and (2) of the PTWR:
26. Clause 3.2 of the Agreement defines a 'comparable full-time worker':
This is reflected in regulation 2(4) of the PTWR:
27. Regulation 2(1) defines a full-time worker:
Regulation 2(2) defines a part-time worker:
28. Regulation 2(3) is the most relevant to the issue of 'same type of contract' under regulation 2(4)(a). At the relevant time it read thus:
Finally, it should be noted that, under Regulation 1, a 'worker' means both an 'employee', an individual who has entered into, works or worked under a contract of employment, and an individual who has entered into, works or worked under 'any other contract . . . whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.'