Zero-hour lecturer entitled to use a permanent full-time lecturer as a comparator

The EAT has recently overturned an employment tribunal’s decision and held that a university lecturer employed under a zero hours contract was, for the purposes of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “Part-Time Workers Regulations”), working under a contract comparable to that of a full-time university lecturer working under a permanent contract.

The Claimant was employed as an Associate Lecturer at the Respondent University. He brought claims for unfair dismissal, less favourable treatment under the Part-Time Workers Regulations, and a claim of age discrimination. The age discrimination claim was withdrawn; the unfair dismissal claim was dismissed; and the claim for less favourable treatment was appealed to the EAT.

In order to succeed in a claim for less favourable treatment under the Part-Time Workers Regulations, as put forward by the Claimant, an individual must first establish that they are a part-time worker as defined in the Part-Time Workers Regulations and then identify an actual full-time worker comparator.

In this case the Judge noted that “in order to be apt, the full-time comparator required under the Part-Time Workers Regulations must be comparable in four respects: they must (1) be employed by the same employer with (2) the same contract type, (3) engaged in the same or broadly similar work, and finally, geographically by (4) being based at the same establishment.” The Claimant had identified a full-time lecturer employed on a permanent contract at the Respondent University as his comparator, however the employment tribunal determined that these lecturers were not employed under the same type of contract and so the definition under the Part-Time Workers Regulations was not met.

On appeal, the EAT disagreed with the employment tribunal’s decision and held that the employment tribunal had misdirected itself in the law and “erred in concluding that the type of contract that the comparator was engaged in was of a different in type to that of the [lecturer]”.

The EAT has remitted the case back to the employment tribunal to determine whether the lecturers were “engaged in the same or broadly similar work” and if this is the case, whether the Claimant was subjected to less favourable treatment.