Do you use Zero Hours Contracts?

Written by Brabners LLP

Who can workers/employees on these contracts compare themselves with for discrimination purposes?

In most discrimination claims, the claimant must have a comparator who they can compare themselves with in order to argue that they have suffered less favourable treatment. Often, the comparator is someone else in the employer’s business whose circumstances are similar to the claimant’s apart from the fact that they do not have the particular disability, race or other protected characteristic that the claimant is relying on. In the case of zero-hours workers, the question arises as to whether they are able to compare themselves to a  permanent full-time colleague not on a zero hours contract or whether they must compare themselves to others on the same zero hours contract.

In Roddis v Sheffield Hallam University, the Employment Appeal Tribunal (“EAT”) answered this question and held that zero-hours workers are comparable to full-time permanent colleagues not on a zero hours contract. 

The claim centred around a university lecturer, Mr. Roddis, who was employed under a zero hours contract. Mr. Roddis issued a claim for discrimination under The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “Regulations”). Mr Roddis argued that he had been treated less favourably because he was a part-time worker. 

Mr Roddis sought to compare himself with a full-time colleague, but an issue was raised as to whether Mr Roddis had referred to a valid comparator or not. This is because the chosen comparator was not engaged under a zero hours contract. 

Under the Regulations, a claimant has to establish that he or she is a part-time worker and then identify a full-time comparator who meets certain requirements. One of those requirements is that the comparator must be employed by the same employer with the same contract type. The tribunal had to decide whether the claimant and his chosen comparator were employed under the same type of contract for these purposes and a comparison could be permitted.

The tribunal which first considered Mr Roddis’ claim went on to reject it. The tribunal held that Mr. Roddis’ zero hours contract was not the “same type” as his chosen comparator. The claim was dismissed by the tribunal without the need for further consideration as a result. Mr. Roddis then appealed to the EAT.

The EAT disagreed with the initial tribunal and held that Mr. Roddis’ contract was the same as his permanent, full-time comparator for the purpose of the Regulations. It was found that the Regulations allow for a ‘wide variety’ of contractual terms and conditions to be taken into account and, as such, allowed for a comparison between zero-hours contracts and permanent full-time contracts.

The EAT’s decision stands to reason – if such comparisons cannot be made it would surely defeat the objective of the Regulations which is to protect part-time workers. The first tribunal’s decision would have meant that Mr. Roddis would not have been able to challenge his employer’s alleged discrimination under the Regulations and this could be seen as making the Regulations self-defeating.

This is an important decision for businesses and individuals alike to be aware of. It re-affirms the scope of protection afforded to part-time workers and clearly confirms that zero-hours workers can compare themselves to full-time employees who are on more typical contracts. This needs to be borne in mind by businesses who engage zero hours workers on a part-time basis and in the way that they treat this type of worker.    

 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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