This week’s case concerns less favourable treatment of part time workers.
Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 states a part-time worker has the right not to be treated less favourably than a full-time comparator by their employer.
Therefore, the question this week is:
Does not extending a compulsory/statutory retirement age amount to less favourable treatment?
Ministry of Justice v Blackford
Mr Blackford, the Claimant, was a Barrister and part-time Recorder (junior member of the judiciary) for the Ministry of Justice, the Respondent. The Respondent had a compulsory retirement age of 70. Upon the Claimant turning 70 he applied to extend his retirement age beyond 70, the Respondent did not extend his term of office.
The Claimant initiated ET proceedings. He argued that a full-time Circuit Judge had been allowed to extend his term of office to 72 and the only difference between the Claimant and this comparator was that the Claimant was part-time.
At Hearing the Respondent stated the reason why the full-time judge’s term was extended and not the Claimant’s was due to resourcing at the time of the respective applications, despite there being a shortage in the Claimant’s region. The Respondent did not rely on the fact that the full-time comparator was qualified to hear serious sexual offence crimes and the Claimant was not.
The ET allowed the claim and the Respondent appealed. The EAT rejected the appeal because the ET had been right to rule that the Claimant was less favourably treated and the Respondent had failed to justify this.
The takeaway point:
Yes, extending the retirement age for full-time workers and not part-time workers can amount to less favourable treatment – for some, the reverse would surely be even less favourable!
In all cases of this nature if there is justification then there will be no liability. For example, if the full-time employee has skills which the part-time employee does not AND are difficult to replace – such as being able to hear sexual offence crimes – then the employer might want to rely on this justification. However, if there is no material difference other than part-time status than such treatment will always be deemed less-favourable.