The law says that part-time workers cannot be treated less favourably than full-time workers unless it can be justified to achieve a legitimate business objective. In (1) Ministry of Justice and (2) Lord Chancellor v Dodds and ors, the EAT held that a legitimate aim can include cost savings as long as that is not the employer’s sole reason.
Basic facts
The five claimants in this case were all judges who operated from time to time in more senior judicial roles, known as “sitting up”. On the days when they “sat up”, they were paid at the rate applicable to their salaried office as opposed to the higher rate of pay that attached to the more senior post.
The claimants argued that as they were part-time workers in their “sitting up” capacity, they should be paid at the same daily rate as the more senior full-time judges. Given that the government (in this case the Ministry of Justice) had paid them at their salaried rate, they argued that they had been treated less favourably than comparable full-time workers under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The ministry argued that any less favourable treatment was not on the ground of their part-time status, but because their primary office was a full-time salaried one. This approach could be justified because it was:
- a fair and flexible deployment of judges to courts and tribunals whose office holders could be paid at different rates;
- a fair allocation of resources, and;
- reflected the difference in hierarchy and full-time roles between different judicial posts.
Tribunal decision
The tribunal accepted the claimants’ arguments that when they “sat up” they were part-time workers and that they could, therefore, compare their pay with that of more senior judges. As such, the lower rate of pay was less favourable treatment. Although it found that the ministry’s aims were legitimate on the basis of allocation of resources, it held that they could not be justified on objective grounds.
The ministry appealed against all those findings. In particular, it argued that it was perverse for the tribunal to find that the decision to pay the claimants at their salaried rate was taken solely or mainly to save costs.
EAT decision
Allowing the appeal, the EAT held that rather than focusing on whether the claimants worked part time when “sitting up”, the tribunal should have considered the totality of their work, not least because the ministry had argued that “sitting up” was, in fact, part of their full-time salaried offices. Given the decision that the claimants were not part-time workers, it followed that the tribunal’s findings on comparability could not stand.
The tribunal was also wrong in law when coming to its conclusion on causation in that it had introduced a fairness test when considering whether there was a reason for the difference in treatment between the two groups. Given that tribunals are simply concerned with the reason for the less favourable treatment, it was not appropriate, at this stage, to consider whether it was a good reason or a fair reason. This had then led the tribunal into making “an unwarranted distinction” between what it referred to as the “core” duties of the claimants’ salaried role and the duties they performed when sitting up.
The tribunal had also made a mistake on justification as it had wrongly characterised the ministry’s aim of allocating resources fairly as an attempt to save on cost. Although employers cannot rely on saving costs as a legitimate aim in order to defend a discrimination claim, that principle only applies where the aim is “solely” to avoid costs. As that was not the situation here, the decision on costs could not stand either.
The EAT remitted the case to the same tribunal to redetermine these issues.