Tired of ‘Uber’ or ‘Pimlico Plumbers’ (or should that be Pimlico trades-people) then why not read about Engel (the part time Judiciary)?

Warning: this blog talks about Pensions and objctivity!

Let us start with the law surrounding part time workers

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 [Reg 5. Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the 2000 Regulations”] –

“(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if –

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds.

(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”

Central to these appeals is Regulation 5(2)(a), which provides that the right conferred by Regulation 5(1) applies only if the less favourable treatment is “on the ground that the worker is a part-time worker”.

The 2000 Regulations were enacted to implement the Part-Time Workers Directive 1997 97/81/EC (hereafter “PTWD”). This confirmed a framework agreement on part-time work concluded by social partners. The framework agreement provided as follows:

“Clause 4: Principle of non-discrimination

  1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.
  2. Where appropriate, the principle of pro rata temporis shall apply.
  3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice.
  4. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4.1.”

Well, that seems very clear.  An employer can not treat a part time worker differently to a person undertaking the same (or substantially similar)  role just because they are part time unless their is objective grounds for doing so.  So what could possibly go wrong?

What is a Recorder?

The CJEU (European Court) determined that workers were to be defined nationally (by the UK Parliament) and not by the European Court.   Further the social framework was concluded and the read so that part time Recorders were Workers.

In a related and important case a Mr O’Brien O’Brien v Ministry of Justice [2013] ICR 499), who was then in practice as a barrister, decided to apply to become a recorder ( a Judge in ordinary language).  He was appointed as a recorder with effect from 1 March 1978, and he continued sitting as a recorder until he ceased to hold that office on March 2005. The question then arose as to whether, as he was no longer the holder of a judicial office, he was entitled to a pension under the judicial pension scheme.

The office of recorder is not one of the judicial offices for which provision for the payment of pensions was made in the Judicial Pensions Act 1981.  So over time at least 1981 until 2005) the part time role of a Recorder did not attract a pension BUT the full time role did.  This term coined for this difference is an “historic” reason for the difference.

What can be an objective difference?

Historical difference might exist (as in O’Brien’s case) but they need to be justified or they might be unlawful.

The O’Brien judgement stated at [51] “The Ministry have struggled to explain what they are seeking to achieve by denying a pension to part-timers while granting one to full-timers. One aim seems to be to give a greater reward to those who are thought to need it most. This might be a legitimate aim, but (as Advocate General Kokott explained) the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria. An employer might devise a scheme which rewarded its workers according to need rather than to their contribution, but the criteria would have to be precise and transparent. That is not so here. Some part-timers will need this provision as much as, if not more than, some of the full-timers. On examination, this objective amounts to nothing more than a blanket discrimination between the different classes of worker, which would undermine the basic principle of the PTWD.

Similarly (but inconsistently), an employer might aim to give a greater reward to those who make the greater contribution to the justice system, but the Ministry have failed to demonstrate that fee-paid part-timers, as a class, make a lesser contribution to the justice system than do full-timers, as a class. Once again, the criteria for assessing such contributions are not precise and transparent. They amount to nothing more than a blanket discrimination between the two classes of worker. The proper approach to differential contributions is to make special payments for extra responsibilities. The argument also fails to take into account the benefits to the system in having a cadre of fee-paid part-timers who can be flexibly deployed to meet the changing demands upon it.”

So for a difference to be (legitimate/permissible) Advocate General Kokott explained it must be:

  • precise,
  • objective,
  • transparent,
  • based on concrete factors, and
  • specific to the context.

So what is the case of Engel about?

The O’Brien situation was sent back to the Employment Tribunal to sort out and the Engel’s case is one of many where the lawyers argued about comparitors (like for like work) and whether or not a procedural or legal error was made.

 As an aside, can budgets/costs  be relevant?

Budgetary considerations cannot justify discrimination: see, to that effect, Schönheit v Stadt Frankfurt am Main (Joined Cases C-4/02 and C-5/02 [2003] ECR I-12575, para 85, and Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol (Case C-486/08) [2010] ECR I-3527, para 46.”  Sound management of [the public] finances may be a legitimate aim, but that is very different from deliberately discriminating against part-time workers in order to save money.

Suppose a company that pays its own part-time workers pro rata to full-time workers takes over part-time employees who do similar work from another company, which paid them less? Can it be permissible under the 2000 Regulations for the company to perpetuate the lower rate of pay to the newly acquired part-time workers? in Engel the Claimant submitted it would be contrary to the purpose of the 2000 Regulations if this were the case, but, this very much depends on the reason why the company pays less, a matter which an Employment Tribunal would investigate with care and which it would be for the company to identify.

Can reward based on contribution be justified? 

Where the difference is based on greater reward to those who contribute more the same rules apply – anything less is discriminatory.

Summary

Whilst the Engels Judgement does not advance us much further, it is clear that objective criteria are to be the bedrock of difference they they must be relevant and concise.  Or as Advocate General Kokott explained:

  • precise,
  • objective,
  • transparent,
  • based on concrete factors, and
  • specific to the context.

 

Citation:  [2017] ICR 277, [2016] UKEAT 0337_15_3008

Link toEngel v. Ministry of Justice and Department for Communities and Local Government [2016] UKEAT 0337_15_3008 (30 August 2016)

Link to: O’Brien v Ministry of Justice [2013] UKSC 6 (6 February 2013)

 

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