The claimant was employed as a Phlebotomist with the Respondent between 2nd April 2018 and 27th July 2020.   With regard to working hours in the Respondent organisation, full-time employment equated to 37.5 hours; the claimant did not work those hours and was therefore regarded as a part-time worker under the regulations.

The issue in this case related to a ‘complimentary’ 15 minute break for certain shifts of at least six hours.   The claimant worked 16 hours per week and the shift patterns were different.  Generally during weekdays, the claimant would do four hour shifts with a six hour shift at the weekend.   The claimant received the break at the weekend, but he did not receive a break during the week.  The issue was that some other part-time workers received a paid break during their four-hour shifts.   The full-time workers got the paid break considering that their shifts were longer than the six hours.

At first instance, the Tribunal stated that there was less favourable treatment on the basis of being part-time.  It found that the by definition part-time workers were going to work fewer hours when examined alongside a full-time comparator and that should have been considered in giving the paid break.  The Tribunal awarded £965 as compensation.

The employer appealed this decision.  The EAT found that the employer’s true intention must be tested by examining hypothetical situations.  This would go to whether it was based upon the length of shift or the form of worker.    It was held that the Tribunal had erred in conflating the issues of total hours worked and shift length.  They should have been separated out when it came to the awarding of paid breaks.   It was found that there was no basis in law in which the Tribunal could have decided that the treatment was as a result of being a part-time worker rather than the mere length of the shifts.  Indeed, as outlined in McMenemy v Capita Business Services the part-time status would have to be sole reason and this could not be shown.  Accordingly, the appeal was allowed with the case being dismissed.

Practical Lessons

This case demonstrates some of the subtle issues that can arise in determining whether there is less favourable treatment.  It is important that the EAT has outlined that in applying McMenemy the sole reason for any treatment argued as less favourable should be the status as part-time.  Therefore, where it could be shown that the treatment was a policy applied to all workers then it would not be less favourable treatment.  As a result, this is a sensible decision which looks at the policy implemented by the employer in the round rather than through the view of one individual taking a claim.
https://www.gov.uk/employment-appeal-tribunal-decisions/forth-valley-health-board-v-james-campbell-ea-2020-sco-000093-sh-previously-ukeats-slash-0003-slash-21-slash-sh