The Respondents had employed the Appellant in this matter, William John McMenemy, as part of their research team from 1998. The Respondents are a large company who provide business support services across the UK, and the Appellant was based in their Glasgow branch. In April 1999 he made a successful application to commence working on a part time as opposed to a full time basis in order to enable him to fulfil his childcare responsibilities. He therefore began working from Wednesday to Friday of each week.
The staff in the office in which he worked were divided into teams and the team which he formed part of included a mixture of both full time and part time employees. The Appellant was not permitted to have time off in lieu when public holidays fell on a Monday, although full time members of the staff team of which he formed a part, who normally work on Mondays, were given the day off. This basically raised two major questions;
1. Was the applicant treated less favourably than a comparable full time worker?
2. If so, was the reason for the unfavourable treatment that he worked part time, and for that reason alone?
The Scottish Court of Session in commencing their Judgment decided that the provisions of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2005 as well as the European Legislation as set out in Council Directive 97/81/EC were both relevant and helpful. In the context of relevant European Legislation the Court also highlighted Clause 1 of the Framework Agreement relating to the aforementioned Directive. Its purpose was to provide for the removal of discrimination against part time workers and to improve the quality of their work.
The court made it clear that in order for a claim to succeed with regard to less favourable treatment of part time workers, it must be clearly shown that any discrimination against them was for the sole reason that they were employed on only a part time basis. Part time workers are entitled to receive a portion of the pay and benefits received by full time workers in keeping with the number of weekly hours they work in comparison to their full time colleagues.
The earlier decision taken by the Employment Appeal Tribunal drew criticism from the court as, despite the fact that there were a number of full time workers who could easily have been used for comparison purposes when the Appellant’s predicament was being assessed, the decision made reference to a hypothetical full time employee. This hypothetical individual was ultimately used to compare to the Appellant and eventually this played an important role in the defeat the Appellant’s case. This court, however, took the view that such a hypothetical comparator was only permissible where there was no actual comparator but quite frankly in this case there were suitable actual comparators and therefore the hypothetical full time worker concept should be binned.
The fact that there were comparable full time workers who did not suffer less favourable treatment was, of itself, not sufficient to establish liability as the court felt that it should be shown that the sole reason for the less favourable treatment was that the disadvantaged person was a part time employee. The court came to the conclusion that the earlier Employment Tribunal and the subsequent Employment Appeal Tribunal had both reached the correct decision in relation to this matter. It was pointed out that the Respondent Company’s policy in relation to public holidays indicated that if any member of staff, either of a full time or part time nature, did not work Mondays normally, then they would not have the benefit of Monday bank holidays in terms of time in lieu. As a result, therefore, any discrimination which the Appellant may have suffered was not solely related to his part time status and his case was dismissed.