Zero hours worker compares their treatment with worker on similar type of contract

What happened?

From January 2006, Mr Roddis was employed as an associate lecture by Sheffield Hallam University (the University), on a zero hour’s contract.

Working relations between the University and Roddis broke down and he filed a claim in which he alleged that the University discriminated against him on the grounds of his age, unfairly dismissed him and treated him unfavourably because of his status as a zero hours worker.  A preliminary hearing took place to establish whether Roddis had produced sufficient evidence on which to base his complaints.  

Who is an appropriate comparator for a zero hours worker?

Where a zero hours worker seeks to rely on the protective provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations) because of alleged mistreatment by their employer, the worker must compare their treatment with a comparator. However, determining who is that workers appropriate comparator is not always a straightforward matter. From the case summary of Roddis v Sheffield Hallam University [2018],discerning the right answer requires a close examination of “contract types”, current case law and the application of the Regulations.

What did the ET say at the preliminary hearing?

The only issue for determination at the preliminary hearing was whether Roddis and his chosen comparator, a full time academic lecturer, known as Mr Leader, was employed under the same type of contract. At the preliminary hearing, the Employment Tribunal (ET) held that on its interpretation of the Regulations that Roddis had failed to establish that he and Leader were employed “under the same type of contract”. The ET’s reasoning for this appeared to be based on the fact that Roddis was employed on a zero hours associate lecturer’s contract which the ET stated, was a different type of contract from the permanent academic lecturer’s contract which Leader was employed under. Consequently, on this basis the ET dismissed the case.

What did the EAT rule?

Before the Employment Appeal Tribunal (EAT) Roddis presented arguments that the ET’s interpretation of the Regulations was wrong. Roddis specifically argued that the ET had failed to take into account and follow Matthews v Kent & Medway Towns Fire Authority [2006].The EAT disagreed with the ET’s finding and held that on its interpretation of the Regulations  and the guidance set down in the UK’s landmark case of Matthews, that Roddis and his comparator Leader, were both employed “under the same type of contract”.  

Notably the EAT stated that the Wippel case was concerned with the interpretation of the European Directive from which the Regulations were derived. Whereas the Matthews case not only interpreted the Wippel findings but also went a stage further to look at the application of the Regulations in a UK employment context. In summary the EAT went on to hold thatit is clear that in order to satisfy the requirements of the Regulations it follows that:

  • Where a worker and his comparator are both employed under contracts that fall within the same descriptive paragraph provided by the Regulations, they should be regarded as employed under the same type of contract.
  • A contract cannot be treated as being of a different type from another just because the terms and conditions differ one from the other, nor because an employer chooses to treat workers of a particular type differently.
  • A zero hour’s contract is not for the purposes of the Regulations a type of contract.

In view of the EAT’s findings the case was sent back to the ET to determine whether Roddis was employed in the same, or broadly similar work to Leader and, if so, whether he had been subjected to unjustified less favourable treatment in breach of the Regulations.

Important takeaway points

  • Whenever the issue of who is an appropriate comparator becomes contentious an ET is likely to ignore the many variations and differences within each type of contract and look instead for something that brings them all together within the one of the categories provided by the Regulations.
  • Where a complainant and his proposed comparator do the same or similar work it is likely that an ET will regard them as employed under the same type of contract.
  • A contract cannot be categorised as being of a different type simply on the basis that the hours worked are different or because the employer treats the workers differently.

In view of this, employers should take care to ensure that any treatment of a part time or zero hours worker is no less favourable than that afforded to a full time worker, doing the same or broadly similar work. Any unjustifiable treatment is more than likely to lead to a complaint and possible tribunal proceedings.