Matthews and others (Appellants) v. Kent and Medway Towns and Fire Authority and others (Respondents)
The same type of contract?
29. As the whole purpose of the PTWR is to prohibit unjustified discrimination in the terms and conditions of employment, this threshold requirement is clearly looking for comparable types of employment relationship rather than for comparable terms and conditions of employment. As the Employment Tribunal put it, "It is self evident . . . that a 'part-time contract' is probably almost certainly 'a different' contract from a whole time contract. Our problem was how to assess and identify the existence of 'a different type of contract'" (para 132).
30. The appellants argue that each item in the list in regulation 2(3) is exclusive of the others. Once the relationship falls within one paragraph it cannot fall within another. Here both retained and whole-time fire-fighters fall within paragraph (a): they are 'employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship.' Paragraph (f) was a residual category, included by the draftsman out of an abundance of caution, in case there was some type of employment relationship not covered by paragraphs (a) to (e), although no convincing example has yet been imagined.
31. The respondents argue that paragraph (f) can take a relationship which would otherwise fall within one of the earlier paragraphs into a different category. The Employment Tribunal considered that the "literal meaning of the words is that we should look at the elements of the contract which persuade us that it is taken altogether a 'different type of contract' and then decide whether it is reasonable for the employer to have employees on such a contract." (para 145) A problem which affects both approaches to the construction of paragraph (f) is that it is premised on there being a 'different type of contract' from the others listed but then only applies if it is reasonable for an employer to treat the worker differently for that reason. This leaves the tribunal with nowhere to go if it has determined that it is a different type of contract but then that it is not reasonable to treat the worker differently on that account.
32. The Tribunal referred to the "high degree of commonality" between the contractual terms and conditions of both retained and whole time fire-fighters (para 75). They share the same ranking structure, although the retained fire-fighters cannot progress beyond the rank of sub-officer. They are subject to the same strict discipline. They are covered by the same legislation. Their job descriptions are identical until they get to item 6 (of which more below).
33. However, the retained fire-fighters have different working patterns from the whole-timers. The whole-timers work a "very structured shift system of 42 hours per week with overtime" (para 28). The part-timers commit themselves to regular weekly attendance, of two to three hours, for training and drill. They also commit themselves to being on call for a set number of hours per week, varying from 84 to 156 hours. They are required to be able to attend at the fire-station within 5 minutes of being called out. The Tribunal found that the "part of the retained fire fighters' job role which is . . . virtually unique in our experience is the ad hoc demand led nature of the role of attending call outs to emergency situations" (para 31), although they thought that the coast guard and life boat services might be comparable. The different working patterns are also reflected in different packages of pay. The whole-timers have a conventional salary with overtime structure. The part-timers have a more complicated arrangement, including three main features: an initial 'retaining fee', payment for their regular routine working, and payments for being called out. The Tribunal concluded that "because of the many differences . . . and the many special features of the working patterns as set out above, the Applicants are indeed employed under a different type of contract." (para 142) They also found that there were good reasons for these differences and that it was reasonable for the employer to treat the employees differently on the ground that they had a different type of contract (para 143).
34. The Court of Appeal, however, accepted the appellants' argument on the construction of regulation 2(3). In my opinion they were correct to do so. Regulation 2(3)(f) cannot be designed to allow employers to single out particular kinds of part-time working arrangements and treat them differently from the rest. The list in regulation 2(3) is clearly designed to define different categories of working relationship, within which part-time and full-time workers are to be regarded as comparable but between which they are not. Each category therefore contemplates the possibility of both full-time and part-time workers in that category. Thus the categories are designed to be mutually exclusive. It is accepted by all that categories (a) to (e) are indeed exclusive. But the respondents argue that category (f) is different.
35. I have difficulty accepting that argument because of the way paragraph (f) is drafted. It is drafted in the same way as paragraphs (a) to (e), as the final item in a list of items. If it were indeed intended as an exception to any of the earlier categories, the draftsman would more naturally have included a proviso rather than an additional subparagraph, perhaps along the following lines: "Provided that a description of worker falling within one of the above paragraphs shall be regarded as employed under a different type of contract if it is reasonable for the employer to treat that description of worker differently from other workers on the ground that workers of that description have a different type of contract". Instead, paragraph (f) expressly refers to "any other description of worker" which in any ordinary use of language means "any description of worker other than those described in the preceding paragraphs".
36. These purely linguistic considerations are reinforced by the purpose of the regulation. It is there only to provide a threshold to require the comparison between full and part-time workers to take place. Regulation 5 then provides, as we shall see, for a sensible appreciation of what is and is not less favourable treatment. It also allows for differences in treatment to be objectively justified. Part-time employment is inevitably different from full-time employment in a number of ways, yet the purpose of the PTWR is to secure that it is treated equitably. If the threshold of comparability is set too high this can only apply in the most straightforward of situations, for example, where full-timer and part-timer work in exactly the same way but one for, say, 40 hours a week and the other for, say, 20 hours a week. Yet the watchword of the Directive was flexibility in meeting the needs of both employers and workers. Particular workplaces may wish to arrange the pattern of part-time working differently from that of full-time working to suit their particular needs. There is nothing unusual in employing people who are called upon as and when needed. A good example is the judicial system, which in England and Wales makes substantial use of part-time workers who are remunerated on a daily, fee-paid basis. Rather like the retained fire-fighters, these part-timers commit themselves to attending a minimum amount of training when required to do so and to undertaking a minimum amount of judicial sitting when invited to do so. The draftsman clearly foresaw that these part-time members of the judiciary would otherwise fall within the PTWR because he expressly excluded them by regulation 17.
37. I am not unduly troubled by the fact that no-one has yet thought of a convincing example of an "other description of worker" who might fall within sub-paragraph (f). This is largely because of the exclusionary way in which the other sub-paragraphs are drafted. But it is not at all uncommon for a draftsman prudently to add a residual category just in case. Nor am I unduly troubled by the decision of the European Court of Justice in Wippel v Peek & Cloppenburg GmbH & Co KG  ICR 1604. The claim in that case, to be paid on the basis of the maximum number of hours the worker could have been asked to work, when she was under no obligation to do any work at all, was clearly outrageous. It is not surprising that the Court found that her 'work when asked and if you please' arrangement was not the same type of relationship as those with whom she wished to be compared. Furthermore, the Court of Justice was concerned with an "employment relationship" under clause 3.2 of the Framework Agreement, whereas we are concerned with the express words of the PTWR. The PTWR should be read as going at least as far as the Framework Agreement goes. But it is open to them to go further, as is clear from the broader regulation-making power contained in section 19 of the 1999 Act.
38. For these reasons, essentially the same as those given by Maurice Kay LJ in the Court of Appeal, I would hold that retained and whole-time fire-fighters are employed under the same type of contract for the purpose of regulation 2(4)(a).
The same or broadly similar work?
39. The "main purpose of the job" of both retained and whole-time fire-fighters in the Kent Fire Brigade is:
2. To protect property from fire and the effects of fire.
3. To render humanitarian [and special] services.
4. To assist in safeguarding the environment.
5. To assist in 'Making Kent Safer' by advising and educating the general public and participating in locally organised events."
The first five items in their "main duties and responsibilities" are also the same:
Thereafter, item 6 of the retained fire-fighter's list says only that they must "carry out any other duties as directed by supervisory officers". Whole time fire-fighters have these three items:
40. In practice, the Tribunal found that "at the scene of the fire the actual job function carried out by all attending is effectively the same." (para 7) The retained and whole-time fire-fighters were indistinguishable from one another. The first most senior fire-fighter at the scene assumes and remains in control. The main difference was that while the retained fire-fighters spent a high proportion of their time responding to emergencies, the proportion of the working week spent on this by whole-timers was much lower. Accordingly, the whole-timers spent much more of their time on "non-occurrence duties", community fire safety work, such as home fire risk assessments, advising on installation of home fire detectors, attending local events and giving demonstrations. Although retained fire-fighters could do this sort of work, in practice they were never, or hardly ever, called upon to do so. They were not qualified to issue fire certificates. Hence the Tribunal concluded that "there are measurable additional job functions which are carried out by the whole-time fire fighter . . . and on that ground alone we would find that it is a fuller wider job than that of the retained fire fighter." (para 152) They also found that because of differing entry standards, probationary standards, probationary training and ongoing training, "there are material differences in the 'level of qualification and skills'" between retained and whole time fire-fighters (para 153). Putting together the "fuller wider role" and the "higher level of qualification and skills" they concluded that the two were not "engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience" for the purpose of regulation 2(4)(a)(ii) (para 154).
41. The respondents argue that this was pre-eminently a question of fact for the industrial jury to resolve on the basis of all the evidence before them. The Tribunal heard a great deal of evidence and deliberated over it for no less than five days. Their extended reasons were detailed and closely reasoned. It is not for an appellate court to second guess their assessment. The appellants do not point to any clear error of law in the Tribunal's reasoning, nor do they argue that the conclusion was perverse. They do, however, draw attention to the difference in wording between regulation 2(4)(a)(ii), which requires only that the work be "the same or broadly similar", and its nearest equivalent in section 1(4) of the Equal Pay Act 1970:
42. This test is employed in the context of a scheme which imposes an equality clause upon the contracts of employment of women who are employed on like work with men. It is not a threshold condition which is the precursor to considering whether there is less favourable treatment which cannot objectively be justified. The equality clause operates unless, under section 1(4), there is a difference between the things she does and the things he does which is of practical importance in relation to their terms and conditions of employment, or, under section 1(3), the variation between their contracts is genuinely due to a material factor which is not the difference of sex. Unsurprisingly, there are indications that the Tribunal saw their task under the PTWR, which was new to them then, as essentially similar to that called for under the Equal Pay Act. Thus they assessed the various similarities and differences between the two types of fire-fighters as having 'high', 'medium' or 'low' importance. They used the term "material differences", which is an important concept in sex and race discrimination but not in the PTWR (para 153). They also referred to a "long established proposition in an enquiry of this kind" (para 155) when discussing the equal pay case of Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse  ICR 1134. Thus, although they directed themselves (in para 150) that the PTWR test did not contain the Equal Pay Act reference to differences of practical importance, they did not, after pointing out the differences (in paras 152-153), come back to the "same or broadly similar" test when reaching their conclusions. Instead, they reverted to the language of comparability and in doing so failed to evaluate the differences against the similarities.
43. However, while there are similarities between the two types of comparison, they are not the same. The sole question for the Tribunal at this stage of the inquiry is whether the work on which the full-time and part-time workers are engaged is "the same or broadly similar". I do not accept the appellants' argument, put at its highest, that this involves looking at the similarities and ignoring any differences. The work which they do must be looked at as a whole, taking into account both similarities and differences. But the question is not whether it is different but whether it is the same or broadly similar. That question has also to be approached in the context of regulations which are inviting a comparison between two types of worker whose work will almost inevitably be different to some extent.
44. In making that assessment, the extent to which the work that they do is exactly the same must be of great importance. If a large component of their work is exactly the same, the question is whether any differences are of such importance as to prevent their work being regarded overall as "the same or broadly similar". It is easy to imagine workplaces where both full and part-timers do the same work, but the full-timers have extra activities with which to fill their time. This should not prevent their work being regarded as the same or broadly similar overall. Also of great importance in this assessment is the importance of the same work which they do to the work of the enterprise as a whole. It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts or complaints-handling in an ombudsman's office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.
45. In my view, looking at the extended reasons of the Tribunal as a whole, it is difficult to escape the conclusion that they saw themselves as conducting essentially the same exercise as that required by the Equal Pay Act. They acknowledged that the fire-fighters' work at the fire ground was the same and said that they gave that factor high importance. But they failed to acknowledge the centrality of that work to the enterprise of the Fire Brigade as a whole. That centrality is demonstrated by the fact that in large areas of the country cover is provided only by retained fire-fighters. Nor did the Tribunal suggest that there was any qualitative difference in the work done by both at the fire ground. Special qualifications, which retained fire-fighters do not have, are needed to operate certain specialist equipment, but not all whole time fire-fighters have those qualifications either. The Tribunal's reliance upon the higher qualification and skills of the whole-time fire-fighters was in connection with the further activities which they were called upon to carry out (para 155).
46. There is a further factor which cannot be ignored, at least in a test case concerning a very large nationwide workforce. This is the extent to which the job description and terms of the part-timer's contract means that he can in fact be required to engage in the same range of tasks as the full-timer, even if in practice he is only rarely called upon to do them. There are likely to be variations in practice across the country, with some places showing greater flexibility in their deployment of their part-timers than others. There are also likely to be variations over time. The recent Audit Commission Report (Comprehensive Performance Assessment. Learning from CPA for the Fire and Rescue Service in England 2005) praises those fire authorities which are making more flexible use of their retained fire-fighting force. It also comments that their lack of involvement in community fire safety work is unlikely to be sustainable in the long term. If more authorities take up the recommendation of the Audit Commission that "the lack of inclusion of retained fire-fighters in community fire safety work is reducing the capacity of fire and rescue authorities to deliver local and national objectives" (p 39) the conclusion that they are not engaged in the same or broadly similar work as the whole-timers is also unlikely to be sustainable in the long term. The Tribunal are, of course, judging the case put before them on the evidence put before them as to the present facts. But the requirements which may and sometimes are placed upon the part-time workers are part of that picture.
47. For these reasons I would remit the case to the Tribunal for reconsideration of whether the retained and whole-time fire-fighters are engaged in the same or broadly similar work.Less favourable treatment?
48. There is a subsidiary question, which only arises if the retained fire-fighters cross both planks in the threshold, of the proper approach to assessing less favourable treatment under regulation 5. The appellants assert that both "less favourable treatment" and objective justification have to be considered term by term. The respondents assert that both should be looked at overall. More favourable elements in the package can be set against the less favourable elements in assessing whether overall it is less favourable to the part-timers. Less favourable elements may be justified by more favourable elements elsewhere.
49. I would not wish to rule out the possibility that, in certain cases, a less favourable term might be so well balanced by a more favourable one that it could not be said that the part-timers were treated less favourably overall. Nor would I wish to rule out the possibility that more favourable treatment on one point might supply justification for less favourable treatment on another. But in this case, even supposing it were to go back before a Tribunal, the question is unlikely to arise. The differences complained of are three: a different way of calculating sick pay which the Tribunal found to be less favourable (para 116); a lower hourly rate for additional duties (para 119); but above all, the exclusion of retained fire-fighters from the pension scheme, which again the Tribunal found would be less favourable treatment, at least in some cases (para 110). The Tribunal found it difficult to see any objective justification for these differences, and in their concluding remarks gave some encouragement to the industry to devise a simple pension scheme and a more equitable sick pay scheme. Although it would be open to a Tribunal hearing the case on remission to reach a different conclusion on consideration of the overall package, it is difficult at this stage to see how the differently structured pay package could justify total exclusion from the pension scheme or a sick pay scheme which is unrelated to the hours actually worked.
50. For those reasons, and those given by my noble and learned friend, Lord Hope of Craighead, with which I agree, I would allow this appeal and remit the case to the Employment Tribunal for reconsideration of the "same or broadly similar work" issue and any further issues which arise as a result of their conclusion on that.LORD CARSWELL
51. A large amount of the firefighting work in the United Kingdom is carried out by retained firefighters, who serve part-time at firefighting duties, their main employment being as a rule in other occupations. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) ("the PTWR") were passed, in compliance with the terms of the Framework Agreement annexed to Council Directive 97/81/EC, in order to protect the position of part-time workers, recognising the growing prevalence of part-time working and the need to protect them from exploitation. In these proceedings the appellants, who are all retained firefighters, seek to obtain the benefit of the PTWR, complaining that they have unlawfully been discriminated against by comparison with full-time firefighters in relation to their conditions of employment.
52. The two main issues in the appeal before the House are whether each of the two limbs of regulation 2(4)(a) of the PTWR is satisfied. Regulation 2(4), so far as material, provides:
53. On the first issue I would uphold the decision of the Court of Appeal, for the reasons given by my noble and learned friend Lord Hope of Craighead, that the retained firefighters are employed by the same employer under the same contract. I agree with him that the categories in regulation 2(3) are mutually exclusive. Since the retained firefighters and the full-time firefighters are both governed by regulation 2(3)(a), each being employed under a contract that is neither for a fixed term nor a contract of apprenticeship, cadit quaestio and one need look no further.
54. The second of the two main issues in the appeal, on which I propose to concentrate, is whether the decision of the Employment Tribunal on the application of Regulation 2(4)(a)(ii) can be upheld. On that issue I regret that I do not find it possible to agree with the majority of the Committee. The Employment Tribunal, after examining and setting out the evidence with commendable care and thoroughness, concluded that the retained firefighters and the full-time firefighters were not engaged in the same or broadly similar work. It was contended on behalf of the appellants that the tribunal erred in their approach to the construction of these provisions and that on the facts found they could only properly have reached the opposite conclusion. In other words, they committed an error or errors of law in that, first, they took incorrect matters into account or failed to take into account factors to which they should have had regard and, secondly, their conclusion was in the legal sense perverse. In assessing the validity of these submissions it is necessary to look in some detail at the findings of fact made by the tribunal and the decision based on them.