Judgments - Matthews and others (Appellants) v. Kent and Medway Towns and Fire Authority and others (Respondents)

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    55.  At the outset of the written decision the tribunal set out in paragraph 5 their approach to the evidence and issues, stating in conclusion:

    "For the purposes of this decision we set out our reasons and conclusions we hope in a logical fashion but we would not wish it to be thought that we did not stand back and look at the whole picture simply because we record a number of our conclusions sequentially."

In paragraph 19 the tribunal said:

    "When we reach our conclusions in our overall final conclusions in the case we directed ourselves that we should wherever possible seek to establish any similarities/differences in job function from either a qualitative point of view or a quantitative point of view and then evaluate mainly the qualitative differential."

Again, in paragraph 74 the tribunal emphasised that in comparing the contractual terms of the retained and full-time firefighters it was concerned to look at "the whole job" of each.

    56.  The tribunal commenced their examination of the material facts by describing the fireground in terms which were of central importance (para 7):

    "Starting at the beginning it is self evident that an important function of the job role of the whole time fire fighter and the retained fire fighter is the fighting of fires. There was a substantial agreement on the evidence before us that at the scene of the fire the actual job function carried out by all attending is effectively the same. It was accepted by the Respondents' Counsel and witnesses that if the first fire appliance at the scene is operated or commanded by a retained fire fighter the first most senior fire fighter at the scene whether whole time or retained remains in command at the scene of the fire. It was accepted that to the Clapham Omnibus bystander or the anxious householder the fire fighters at the scene would be indistinguishable in their appearance, uniform, activity or any other outward sign (save for an initial attached to the uniform which designates special qualification in a particular type of equipment)."

They examined the work done and the machinery and equipment operated by the retained and full-time firefighters respectively, then went on to state in paragraph 11:

    "We find generally that on the evidence of the Applicants before us looking at an average year the overall picture is that the retained fire fighters' working week contains a 'high' proportion as opposed to 'medium' or 'low' of call out and attendance at incidents in comparison with the retained fire-fighters' other duties. We accept that there may well be many dozens of retained fire fighters who do not, as a matter of fact, often get called on call outs and attendances. But we also find that looking at the earnings of some of the Applicants who for example earn more than say, £10,000.00 per annum that it is obvious that the proportion of their working life spent on call outs and attendances is properly to be described as 'very high'."

They expressed their conclusion on this part of the evidence in paragraph 14 in the following terms:

    " … we should stress that the similarity in job function and job role and work carried out by retained fire fighters on the fire ground is clearly the strongest point in the Applicants' case and in our own evaluation of the similarities/dissimilarities argued for and against on each side we have no hesitation in attaching to that similarity a label of 'high' importance as opposed to 'medium' or 'low'".

    57.  The tribunal then examined "non-occurrence duties", that is to say, those other than attendance at fires, accidents and emergencies. They held that the full-time firefighters had generally on average very much longer working hours. They expressed their view in broad terms on comparison of job function (para 18):

    "We accept that as a matter of individual competence it is certainly possible that an experienced retained fire fighter is capable of carrying out a home fire risk assessment and making recommendations. In a general way we do not doubt that the vast majority of retained fire fighters are perfectly capable of advising about the need for and the mechanics of the installation of a home fire detector."

They stated their view about the community work carried out in paragraph 20 as follows:

    "As to the community work carried out by the two branches of the service it is, we find, obvious that whether expressed as a total number of hours per week or per year or for that matter whether expressed as a proportion of the relevant fire fighter's time whole time fire fighters plainly carry out quantitatively a great deal more of the duties under this heading than their retained colleagues. We find nevertheless that this is not simply a question of having more hours available to do that kind of work (which of course is the obvious consequence of being 'full time' rather than 'part time'.) We find that there are a variety of ways in which the whole time fire fighter has a much more specialised body of knowledge and experience which can be brought to bear in carrying out these duties than is available to and applied by retained fire fighters."

They pointed out that retained firefighters are not qualified or entitled to issue fire certificates, concluding in paragraph 22:

    "The retained fire fighters are simply not qualified to carry out this role and do not do so. On a lesser but related level retained fire fighters are not in fact used to carry out risk assessments for the assessment of risk of fire in the home. On this area therefore we conclude that whilst there is an element of the differential which is purely quantitative nevertheless we find that there are critical parts of the differential which flow directly from the whole time fire fighters' 'extra' training and qualification and experience. There is additionally therefore a qualitative difference which in our general approach to these various issues we would rate in this case as 'high'."

    58.  The tribunal examined the hours of work of each group, but did not place much emphasis on any differences which existed, stating in paragraph 42:

    "Assessing the differential between the 'hours at work' of he retained fire fighter in comparison with whole time we assess the lower number of the hours as immaterial [part time working being the central matter of the regulations] and the significance of the 'demand led unpredictability' of the hours as 'low'."

    59.  The tribunal looked at recruitment, with particular reference to the Kent and Berkshire areas, which were the subject of the detailed evidence furnished to them. They did not rate the difference between the physical selection tests applied to each group as being of more than "low" significance. On the other hand, the examination-type element in the selection process was much more thorough and detailed, covering all the aptitudes which the full role of the whole-time firefighter requires. They judged (para 52) that there was an overall qualitative difference in the standard of written tests taken, the standard of the full-time firefighters' tests being much more wide ranging, detailed and demanding. They concluded (para 53):

    "This is a differential which were we carrying out a simple 'Equal Value' sort of investigation we would consider to be a significant or 'high' qualitative difference."

    60.  When considering the question of comparisons between the groups in respect of training, qualifications and experience, the tribunal accepted (para 54) that the provision made was changing significantly, with a large number of proposals on the stocks for developing core competencies and development plans for retained firefighters. They took the view, however, in paragraph 55 that they were bound to reach their conclusions on the basis of the "state of play" at the time of the originating applications and not by "looking towards some future date when and if there is more extensive training of the retained firefighters." The validity of this approach was not challenged by the appellants in argument and I consider that it was correct. The conclusion reached by the tribunal on this question was set out in paragraph 57 of the decision:

    "Similar evidence as to the training position in the Kent Authority is given by Mr Peter Stanley, the Central Training and Recruitment Management in Maidstone. At paragraphs 10 onwards of his witness statement page 148 he sets out the main modules covered by that training course and he uses the word 'exam' for the passing of modules at four, eight and twelve week points throughout that training course."

    61.  The tribunal examined the question of promotion, again by reference to the Kent and Berkshire areas, and concluded (para 71):

    "The general picture, however, in both regions is that the hurdles which must be jumped by the retained fire fighter for promotion are by no means as demanding as those which are uniformly and firmly in place for their whole time counterparts. The differential in this case in this area of our comparison exercise we find again to be marked at 'high' and it is a differential which reflects in our judgment again qualitative differences between the two branches of the service and the ceiling at Sub Officer is a symptom of this whole approach."

    62.  They then turned to the comparison of the contractual terms of the groups, observing at paragraph 78 that they would not wish it to be thought that by concentrating on the differences they ignored the "vast commonality" which patently did exist. They examined a number of features, expressing the view (para 84) that the situation of the retained firefighter was

    "highly individual because there is a combination of different types of 'work' which have to be legitimately reflected in the complex mechanism of payment which has evolved over the years."

They examined the several elements of the retained firefighters' pay package, pointing to a number of features which were highly unusual. After looking at bounty payments they concluded at paragraph 100:

    "Putting all these aspects of the work done/pay received equation together our overall conclusion must be we find that although in detailed respects there are a number of similarities with a number of other 'casual' 'occasional' 'on call' types of job role/occupation the whole picture together looked at in the round is that the retained fire fighter is a very special case."

They then considered three areas in which the appellants complain that they have been treated less favourably, entitlement to pensions, sick pay and increased pay for additional responsibilities. On each of these the tribunal accepted that there was less favourable treatment of the retained firefighters.

    63.  The tribunal set out in paragraphs 152 to 154 their views on the issue whether both types of workers were engaged in the same or broadly similar work:

    "152.  In reaching our conclusion as to whether the retained fire fighter Applicants are rightly to be held as 'engaged in the same or broadly similar work' we would have regard again to many of our main conclusions of fact about the particular methods of working of the retained fire fighter service and to the conclusions of fact which we have reached about the way the whole operation has been geared to focus the working duties of the retained fire fighter substantially on the emergency call out fire fighting role. That central fire fighting role was not in dispute before us as being the central and most important job function of the retained fire fighter and being certainly a major part of the job role of the whole time fire fighter. We have accepted above however that there are measurable additional job functions which are carried out by the whole time fire fighter (and in the main we accept Mr Bowers' submissions on these issues) and on that ground alone we would find that it is a fuller wider job than that of the retained fire fighter.

    153.  Additionally we find that because of entry standards, probationary standards, probationary training and ongoing training in the main areas which we have set out in foregoing paragraphs, again there are material differences in the 'level of qualification and skills' between the retained fire fighter and the whole time comparator. Whilst we were not called upon to make the comparison there is obviously simply no comparison between retained ranks above Station Officer since promotion is not permitted (depending on the Region) above that level. We exclude from this part of our assessment the question of 'experience' because we fully take on board and accept the Applicant's case that retained fire fighters particularly those who put in a large number of part time hours can develop an impressive level of experience.

    154.  Putting together however the fuller wider role and the higher level of qualification and skills which we find to be the inevitable inference from the evidence before us, our conclusion is that were we called upon to consider the case under Regulation 2(4) the retained fire fighter would not establish comparability with his full time counterpart under sub-section 2(4)(a)(ii)."

On the question of comparison of qualifications, skills and experience they held in paragraph 155 that there was -

    " … a long established proposition in an enquiry of this kind namely that a higher level of qualification which, further, is reflected in a higher level of skills and which, further, in fact is demonstrated by further activities which the complainant by lack of that level of qualification skill or training is not qualified to carry out and does not in fact carry out places the two workers into different non-comparable situations. If we were called upon therefore to reach a conclusion under this Regulation we would not accept the Applicant's case."

    64.  The second part of the appellants' submission on this part of the case can be quickly dispatched. The test, as laid down in such cases as Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, is difficult to satisfy. As expressed by Lord Radcliffe at page 36, for the conclusion of an inferior tribunal to be set aside on this ground requires a finding that -

    "the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal."

The same point was made by the Court of Appeal (para 22 of Maurice Kay LJ's judgment), citing the remarks of Mummery LJ in Yeboah v Crofton [2002] IRLR 634, 643 para 93. In my opinion it cannot be said that the present case falls into this category. The facts were fully and conscientiously examined by the tribunal, and the issues were discussed at length in their written decision, a point made very well at paragraph 46 of the decision of the Employment Appeal Tribunal. They had material before them on which they were entitled to come to the conclusion which they reached, and in my view their decision could not be set aside on this ground.

    65.  One of the submissions advanced by Mr Allen QC on behalf of the appellants was that the tribunal adopted the wrong approach to the assessment of the similarity of the work done by retained and full-time firefighters, in that they focused too much on the differences. At one point he argued that a tribunal should not consider differences between comparables at the stage when they are considering Regulation 2(4), but only when they come to the question whether the employer can justify the differences under Regulation 5. I cannot accept this contention. In order to make a meaningful comparison of two items and determine the extent of their similarity one necessarily has to look at those aspects in which they are like each other and those in which they are different. I am of opinion that the tribunal were quite correct to look in detail at these matters, so long as they maintained a proper balance and breadth of vision sufficient to satisfy the test "broadly similar". The tribunal did acknowledge carefully at the outset of their examination of the issue the considerable similarity in respect of the core firefighting work done by each group. They investigated in detail the differences between the two groups, but they did in my view address the main issue, whether their work was broadly similar: see, for example, the first sentence of para 152 of their decision, in which they drew together the arguments and commenced to express their conclusions. I consider that there was no error of law in this respect.

    66.  I revert then to the subject matter of the first part of the appellants' submission, whether the tribunal took into account the correct considerations in approaching the issues on which they decided the applications. I have already expressed the view that the tribunal was justified in looking at the differences between the work done by the respective groups, but it has been suggested, first, that they failed to recognise the importance of the common core work of firefighting and rescues and became diverted from proper consideration of the issue by dwelling too much on the differences - put shortly, that they did not see the wood for the trees, the submission made on behalf of the appellants in the Court of Appeal (para 15 of the judgment of Maurice Kay LJ). Secondly, the tribunal directed its attention only to the work done in the mainly urban south of England, in particular in the counties of Kent and Berkshire, and did not take into account the large tracts of country in more remote rural areas in which the fire stations are staffed solely by retained firefighters, who must have to carry out many of the tasks performed in Kent and Berkshire by full-time firefighters. Thirdly, it might be suggested that they did not pay any or sufficient attention to the increasing flexibility applied by the Fire Service to the division of work between retained and full-time firefighters. Fourthly, the view has been expressed by Lord Hope that the reasoning of the tribunal on the differences in the level of qualification, skills and experience between the two types of worker amounted to a misdirection.

    67.  The first point has a degree of attractiveness, as a robust way to reverse the decision of a tribunal or lower court where one disagrees with the balance of that decision. It is necessary, however, for an appellate court to be cautious about adopting this approach, for it may on proper examination turn out that it has the effect of evading the application of the strict test enshrined in Edwards (Inspector of Taxes) v Bairstow, to which I have referred. In the present case I do not consider that there is any room for adopting the approach. If the tribunal had material on which they were entitled to reach their conclusion, as they manifestly had, and that conclusion was within the parameters of those to which a reasonable tribunal properly instructed could come, then it must stand. The tribunal examined the evidence with very great care and were clearly aware of the importance of the common function of the two groups of firefighters in their core work of firefighting and rescue. As I have already stated, I do not think that their conclusion can be upset as perverse. Once that has been established, I do not consider that there is any room in this case for questioning its validity on the suggested ground that their approach dwelt too much on the differences and not enough on the similarities.

    68.  The applications to the Employment Tribunal were regarded as test cases brought on behalf of the whole group of approximately 12,000 retained firefighters throughout the country. In the course of the argument before your Lordships it emerged that there may be significant differences between the staffing and duties carried out by retained firefighters in remote rural areas and the pattern in Kent and Berkshire, where the claimants are stationed. For example, it appears from page 35 of the Audit Commission's published document Fire and Rescue Comprehensive Performance Assessment (which did not become available until after the conclusion of the hearing of the appeal) that in Devon 46 out of 58 stations, or almost 80 per cent, are crewed by retained duty system staff. I think it most likely that evidence of the position in many areas in rural parts of Great Britain, especially the more remote places, would show a similar pattern. Indeed, it was accepted by the first respondents in their closing outline submissions to the tribunal that practice in other stations and forces would differ markedly (Appendix, Part III, p 636). But the tribunal could make their findings only on the evidence adduced before them, and they would not have been justified in reaching conclusions by resort to factual material outside that. By the same token, I do not consider that this House as an appellate tribunal would be justified in resorting proprio motu to material, even though it is in the public domain, which was not before the tribunal and on which they did not base their findings. I do not wish to speculate whether other cases might be brought by other retained firefighters on different facts. On the case as presented to the tribunal, I do not consider that they were in error in deciding it on the material before it.

    69.  The same may be said of the suggestion that the tribunal did not pay proper attention to the increasing amount of flexibility now being adopted by fire authorities in the employment of retained firefighters and the duties assigned to them: see, eg, the Audit Commission document, op cit, p 39. This does not appear to have been the subject of evidence or argument before the tribunal, and they can hardly be faulted for failing to take that factor into account in their decision. In considering a similar submission made to them about training, the tribunal correctly, as I have held (para 60 above), declined to take into account current developments which were proposed but had not been put into effect at the date of the originating applications.

    70.  Finally, I am unable to agree that the tribunal misdirected themselves in respect of qualification, skills and experience. In my opinion the reference to these in regulation 2(4)(a)(ii) is intended to reflect the fact that such differences may be sufficiently great to bring about a difference in kind rather than degree. Various examples were suggested in the course of argument, but one which I think illustrates the point clearly is that of chefs working in a kitchen. The member of the team of chefs who has the lowest level of qualification, skills and experience may perform the most menial culinary tasks. His function may be so far removed from that of the chef de cuisine who heads the team that they might properly be regarded, in common parlance, as being in a different league, and hence not being engaged in the same or broadly similar work. I think that the reference in regulation 2(4)(a)(ii) was designed to recognise this and that the tribunal, appreciating that in discussion of the point, were justified in treating the differences in qualification, skills and experience as an additional factor in making their comparisons.

    71.  My conclusion accordingly has to be that the appellants have failed to make good their challenge to the tribunal's findings on the issue whether they were engaged in the same work as the full-time firefighters or work broadly similar to theirs. I do not reach it lightly or without regret, for the appellants' case has obvious merit and the retained firefighters deserve great credit for their important work, which is of such benefit to the public. I nevertheless have to conclude that the tribunal were not in error in the manner in which they reached their decision, which must stand.

    72.  I would therefore dismiss the appeal.

LORD MANCE

My Lords,

    73.  This appeal raises two main issues. The first is whether the twelve retained firefighters whose cases were examined by the employment tribunal were employed under the same type of contract as their chosen full-time comparators within the meaning of regulation 2(3) and (4)(a)(i) of The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the "PTWR"). The second is whether, if they were, the retained and full-time firefighters were "engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skill and experience" within the meaning of regulation 2(4)(a)(ii) of the PTWR.

    74.  The first issue raises an important question about the status of paragraph (f) in regulation 2(3). Regulation 2(3) lists six classes of employee or worker who "shall be regarded as being employed under different types of contract". It follows that employees or workers within the same class are to be regarded as being employed under the same type of contract. It is common ground that the retained and full-time firefighters, whose contracts fall to be compared on this appeal, both fall within the literal language of class (b), that is "employees employed under a contract for a fixed term that is not a contract of apprenticeship". The respondents' argument, which was accepted by the employment tribunal and the employment appeal tribunal but rejected in the Court of Appeal, is that the retained employees also fall within the language of class (f) - "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" - and that, if so, they are to be regarded as being employed under a different type of contract from their full-time worker comparators, who only fall within class (b). In short, where class (f) applies, there is a different type of contract, even if, apart from class (f), the employees or workers being compared would both fall within one and the same of the earlier classes.

    75.  The definition of "worker" in regulation 1(2) embraces an employee, as well as any individual working under any other contract whereby he "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".

    76.  At first glance, class (f) is formulated to cover some further mutually exclusive class of worker, not falling within any of the prior classes, in the same way as all the previous classes are mutually exclusive. The word "other" in particular would seem to point in this direction. But, since the previous classes are (obviously) all-embracing, there is a difficulty in thinking that this was what the draftsman can have had in mind. Further, if all that the draftsman intended was to cover some perceived (though non-existent) risk that the previous categories were not all-embracing, all that he needed to cover was any other description of worker under a type of contract not falling within and different from any specified in any of the preceding classes. Instead, the draftsman has introduced an apparent element of freedom or judgment, so that class (f) applies where "it is reasonable for the employer to treat" a particular description of worker "differently from other workers on the ground that workers of that description have a different type of contract".

 
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