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Zero-Hours Contracts and the Part-Time Workers Regulations: Roddis v Sheffield Hallam University UKEAT/0299/17

Jonathan-Cook

Cloisters' pupil Jonathan Cook explores Zero-Hours Contracts and the Part-Time Workers Regulations in the case of Roddis v Sheffield Hallam University UKEAT/0299/17

Specialist employment and discrimination barrister David Massarella acted for the successful Appellant in the EAT in this case which examined how Tribunals should approach ‘zero-hours contracts’ for the purposes of claims under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (‘the Part-Time Workers Regulations’).

In order to bring a claim under the Part-Time Workers Regulations a Claimant must be able to compare himself or herself with a full-time comparator.  Respondents have typically relied upon the judgment of the European Court of Justice in Wippel v Peek & Cloppenburg GmbH [2005] IRLR 211 as authority for the proposition that a zero-hours contract can never be compared with a full-time contract. 

In Roddis, the Appellant (‘A’) was employed by the Respondent under a contract of employment that was labelled a zero-hours contract.  A’s contract specified that the Respondent was under no obligation to provide A with any work, but A had nevertheless accepted in excess of 30 offers of work under the contract.  The EAT considered whether A was precluded from relying upon a comparator (‘L’), who was employed by the Respondent as a full-time lecturer, for the purposes of the comparison required under Regulation 2 of the Part-Time Workers Regulations.  The ET had held, in reliance on Wippel, that as A was employed under a zero-hours contract he was not employed under ‘the same type of contract’ as L for the purposes of Reg. 2(4)(a)(i).  The EAT, distinguishing Wippel, disagreed.

HHJ Stacey in the EAT held that the facts of Wippel were extreme.  In that case the Claimant wished to be paid on the basis of the maximum number of hours she could have worked in circumstances where she was under no obligation to work any hours at all.  In this case, A was not seeking to be paid a full-time salary irrespective of the number of hours he actually worked.

Furthermore, Wippel had been considered and distinguished by the House of Lords in Matthews v Kent & Medway Towns Fire Authority [2006] ICR 365.  In Matthews Lady Hale held that the Part-Time Workers Regulations should be read as going ‘at least as far’ as the European Framework Agreement (Directive 97/81) given that the Regulations had been made under the broad enabling power contained in s.19 Employment Relations Act 1999.  While Wippel was decided under the Directive, UK cases fall to be decided under the Regulations.

Reg. 2(3) of the Regulations provides a list of four mutually exclusive types of contract.  In order to determine whether A and L were employed under the ‘same type of contract’ for the purposes of the comparison required by Reg. 2(4)(a)(i) the essential question was whether the contracts fell within the same category under Reg. 2(3).

As the House of Lords made clear in Matthews, a zero-hours contract is not a ‘type of contract’ for the purposes of the Part-Time Workers Regulations.  The categories in Reg. 2(3) were purposely defined broadly so as to allow a range of contractual arrangements to be captured within the same category, and a description of a worker who would fall within the residual category in Reg. 2(3)(d) had not yet been identified.  A contract could not be treated as being of a different type for the purposes of the comparison just because its terms and conditions were different or because an employer chose to treat workers of a particular type differently.  The ET had determined that A and L were both employees of the Respondent working under contracts of employment.  Consequently, the only logical conclusion was that both A and L were ‘employees employed under a contract that is not a contract of apprenticeship’ pursuant to Reg. 2(3)(a) and were employed under the same type of contract for the purposes of Reg. 2(4)(a)(i).  The appeal was allowed and the case was remitted to the ET to deal with the remaining issues.

The EAT’s judgment provides welcome clarification of the position of individuals employed under purported zero-hours contracts under the Part-Time Workers Regulations. It is now apparent that the label applied to a contract is not determinative for the purposes of the comparison, as that would defeat the legislative purpose of the Regulations.  It is necessary for Tribunals to examine the substance of the contractual relationship, and if the contract of a Claimant and his or her comparator fall within the same category under Reg. 2(3) that is sufficient for the purposes of Reg. 2(4)(a)(i).

 

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