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Zero Hours Contracts and Part Time Worker Claims

on Friday, 08 June 2018.

Can a zero-hours contract be the 'same type of contract' as a permanent employment contract for the purposes of a part-time worker claim?

The Employment Appeal Tribunal (EAT) held in the recent case of Roddis v Sheffield Hallam University that for the purposes of part-time workers discrimination claims, a zero hours contract can be the same type of contract as a permanent employment contract.

The Facts

Mr Roddis worked for the University as an associate lecturer. His contract stated that:

  • his hours of work would vary according to the workload of the University's business
  • there may be periods when no work was available
  • the University had no obligation to provide him with any work or to provide a minimum number of hours in any day or week

The University sent Mr Roddis a form notifying him of the work it would require from him before each semester or academic year. Mr Roddis received over 30 SHU 5a forms since 2006, including two particular courses for which he had had consecutive appointments over some five years. He brought a claim for less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Regulations), comparing himself with a full-time permanent lecturer.

The Relevant Law

Under the Regulations, part-time workers have the right not to be treated less favourably than a comparable full-time worker. For these purposes, a full-time worker is a 'comparable' full-time worker if they are:

  • employed by the same employer 'under the same type of contract'
  • engaged in the same or broadly similar work

Employment Tribunal decision

The ET found that:

  • there was quite clearly a zero-hours contract;
  • each form issued to Mr Roddis constituted an offer of work; and
  • he was an employee of the University.

The ET then held that as the comparator was employed on a permanent full-time contract, Mr Roddis' zero-hours contract was not the same type of contract and therefore a comparable full-time worker had not been identified.

The ET did not go on to consider the second part of the test and struck out the claim. The Claimant appealed.

EAT Decision

The EAT considered the list of four categories of different types of contract provided by the Regulations.

It held that a zero-hour contract cannot be a 'type' of contract itself as this would mean a worker on such a contract could never compare themselves with a full-time worker, thus defeating the purpose of the Regulations. There is already clear guidance from the Court of Appeal in the case of Matthews v Kent & Medway Towns Fire Authority [2005] ICR 84 that the four categories in the regulations are a mutually exclusive and exhaustive list of the types of contract, that the categories are broadly defined and the threshold set deliberately low. Those categories are:

  • employee (excluding apprentices)
  • apprentices
  • workers who are not employees
  • any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that the workers of that description have a different type of contract (a category in respect of which no practical example has yet been identified by the courts)

The Claimant and his comparator were both employed under a contract of employment, the fact that they contained different terms and conditions does not make them different types. Therefore the EAT held that the Claimant had identified a valid comparator and remitted the case back to the ET to determine if the work performed was broadly similar, whether there was less favourable treatment on the grounds of part-time status and, if so, whether it could be objectively justified by the University.

Best Practice

Given the Court of Appeal's guidance in Matthews the ET's initial decision is perhaps a little surprising. Once it had determined that Mr Roddis was an employee, there seems to have been little doubt that he was employed on the same type of contract as his comparator.

It is common in the HE sector to engage lecturers on this style of 'Associate Lecturer' contract with little or no commitment to provide ongoing work. Depending on the actual working patterns and arrangements, many will not satisfy the threshold for employment status in the way that Mr Roddis has. Also, the type of work they do will often be distinguishable from that of their full-time, permanent colleagues on the basis that it is limited to the teaching functions and carries no research and/or administrative obligations. However, HR and contracts managers at Universities should be aware of the importance of properly categorising these types of contracts and, where they do differ in duties and responsibilities, making that clear.


For more information, please contact Bob Fahy in our Employment Law team on 01923 919 302.

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