Following part 1 and part 2, part 3 of Roddis v Sheffield Hallam Uni (SHU) asks why an Appeal Judge quashed a 2013 employment tribunal to find Wippel v Peek NOT applicable to my plight as part time lecturer on SHU’s toxic zero hour contract.
It also gives life-enhancing insights on the distinction between contract type and contract terms.
Hooked? You will be …
Fings ain’t wot they used to be. I’m old enough to recall postcards in shop windows that graced Room To Let ads with a “no blacks or Irish” caveat. The day I was eighteen, Michaelmas 1970, I did my first shift as a barman at the Royal Hotel on Abbeydale Road. The middle aged woman showing me the ropes earned three shillings an hour. Betty they called her. Me? I was on three and fourpence and shamed by it. I didn’t want me on three bob of course. I wanted her on four.
At closing time a trio of high spirited lads might with impunity give Madame George a pasting – should he be so foolhardy as to be out and about at such an hour – though earlier that evening they’d have laughed themselves silly over Frankie Howerd’s “titter ye nots” in Up Pompei, or assured one another of Liberace’s many sided genius.
Such things were legal, or at any rate tolerated, until a string of anti-discrimination laws1 both reflected and effected a sea change in attitudes to social exclusion. Needless to say, these laws were resisted at the time as arrant encroachment on freedoms stretching back to Magna Carta, but who now could name the dinosaurs who penned such drivel, and with such puffed up fury, for Mail and Express? Who now would think the ostentatious opening of windows, the spraying of air freshener – because a black colleague had entered the office – a spot of harmless fun?
So too, in the face of employers like SHU doing their level best (as seen in part two) to render them toothless, did Part-time Workers Regulations (Prevention of Less Favourable Treatment) 2000 intend to change Britain’s cultural landscape. Just as “no wogs” is no longer acceptable – nor Betty earning less than the boy she’s training up, nor homophobic thuggery – so too did the 2000 Regulations seek to render the abusers of Britain’s growing precariat an extinct species.
There’s a difference though, and not just in the fact that, eighteen years after implementation of the Regulations, the precariat – unlike the blatant racism, sexism and homophobia of my white working class boyhood and early manhood – is bigger than ever.
No, the difference I speak of is more technical. To bring a case of discrimination on ground of age, sex, sexual orientation, creed or skin colour a hypothetical comparator – ‘this wouldn’t happen if I was young/male/straight/christian/white’ – will get you across the legal threshold for the specifics of your case to be Heard. But such hypotheticals don’t cut it for claims brought under the Regulations. To show that an employer could and did treat you unfairly by the fact of your part time status, you must start by identifying a living breathing comparator on a full time contract. What’s more, that contract must be of the same type as yours.
Given SHU’s intent, set out with admirable clarity in its HR document of 26/6/2000, and given its unswerving insistence that my contract was of a different type to that of my named full time comparator – let’s call him Mark – we can validly deduce it chose the zero hours route precisely because it thought any challenge under the Regulations 2000 would fail the ‘same type’ test at pre-Hearing. Any specific allegations of less favourable treatment would never be heard by an Employment Tribunal.
The Tribunal finding of 2013 – that Mark did indeed have a different type of contract – not only stopped my claim in its tracks to prevent, it seemed, its specific allegations ever seeing light of day. More important in the wider scheme of things was its signal to SHU, and by extension a higher education sector treading much the same path, that it had played a blinder at that June sub committee thirteen years earlier.
But now the Employment Appeal Tribunal of March 23 this year has found us on the same type of contract after all, sending a shockwave through the sector. Deeming Wippel v Peek closer to the scenario described in part two – a warehouse casual worker agreeing to come in “for three hours tomorrow” – than to that of a lecturer agreeing to teach a three month semester, Judge Stacey ruled my contract as differing from Mark’s in terms but not in type. Ipso facto, with my terms manifestly less favourable than his, SHU was – and for hundreds of part time academics on that self same zero hour contract still is – in breach of the Regulations 2000, which outlaw such in-and-out running between contracts of the same type with the same employer.
So how did Judge Stacey get to her finding? Two reasons prevent a blow by blow account. One is that, as steelcity readers doubtless recall, I was in Taiwan when she sat in London on March 23, a Friday, to hear my appeal. The other is that the glacial pace of legal machinery no less under-funded than the rest of our public sector makes three month waits for Written Reasons the norm. Kaye was there on my behalf but before giving her observations, let me set out the second of the three game-changers, all in the sixth year of my dispute, referred to in part one.
Kaye emailed late on March 23, soon after the Appeal Hearing. I was reading her account over morning coffee, in eight hours ahead Taiwan, within seconds of her hitting send, and have kept its typos and unruly punctuation for their authentic, despatches-from-the-trenches feel:
We started at 10.30. The Judge had clearly read the papers and didn’t want the Barristers to go through their skeleton arguments. She questioned them. She had a bad throat and was losing her voice.
She decided at the end of their submissions that it would be better to give her Judgment on Monday at 2.30 pm as she felt her voice would not survive. She was clearly struggling but she may have wanted more time as it became clear it is an important Judgment. She might send the “type of contract” issue back to be heard by another tribunal or she might not. There is, of course, no guarantee that we will succeed.
She questioned the University closely on the possibility of you turning down work and clearly couldn’t accept that. She said if a student was required to hand in an essay each month would the student hand it in to different people which wouldn’t be at all satisfactory. There was no real explanation from them. They said that Dainty2 had said you could turn down work under cross examiantion although that wasn’t mentioned in the  Judgment and Reasons. The Judge was also struggling with the University’s interpretation of the PTWR. They were relying on Lord Mance’s speech from Matthews. But the four other Lordships had disagreed with him so she very forcefully said that there is no way his opinion is relevant as he was the only one out of 5 who said that the part time firefighters ha, a different type of contract. All the others had rejected that idea and said their contract was the same type.
Our Barrister said he felt quietly confident that we would succeed. I was assured by the two UCU officials who were there that I would hear on Monday the outcome after they have been to the EAT (I will not be going) and they were very grateful to us for taking it this far and realise that it could help many casualised staff. The Barrister complimented us many times on bringing it as far as we had. I think he was quite pleased to be involved with a case which could give a landmark judgment. There was no one there from the University but they had a Barrister and Solicitor, not David O’Hara.
I hope common sense will prevail but sometimes it is easier to go along with the respondent. She did seem to have common sense and had done her homework. If we get a Judgment which I can understand then I would go along with that so I do hope that we have a sensible outcome.
Anyway I will let you know more on Monday.
Let me unpack this. I’ll start with the easiest part, not that any of it is rocketry. Kaye’s post ruling email on the Monday brought, as flagged in part one, cause for champagne popping jubilance. Judge Stacey had neither ruled against us nor sent it back for another tribunal. We’d won there and then on the right to have my specific allegations Heard at date(s) undecided.3 From the tiny perspective of my own struggle, this was neither the end nor the beginning of the end. Merely, and I may have to copyright these words, the end of the beginning.
And for higher education at large? I already said it. A shockwave.
Kaye mentions my having a barrister in my corner. How come? Recall from part one that in 2013 I failed to convince the union that my claims not only have sector-wide relevance, but sufficient prospect of success to justify its support. Two comments. First, I do not hold that against UCU. Accountable to fee-paying members, unions aren’t and never could be in the game of throwing money around.
Second, such caution cannot but embolden the employer. As the lowliest of paralegals will tell you, civil law is nine parts psychology. The David O’Hara cited by Kaye was not a barrister, but a solicitor of such seniority he was – as a barrister up against him in a separate case once said in my presence – of equal rank. His firm, Eversheds LLP, is on a retainer with Sheffield Hallam and known, as another barrister told me in a forty minute consultation setting me back a cool three hundred, for rare bullishness.
Now here’s the thing, and I must choose my words carefully. In the David and Goliath match I’d initiated – fools rush in – David may not be the only one over-awed. Tribunal judges are human beings. They have egos. They have bosses. They work in a parsimonious environment. On none of these counts do they want their exquisitely phrased judgments overturned on appeal.
I put it to you that this stacks up to a situation whereby, in complex or finely balanced cases, all but the most superhuman judge may unconsciously be swayed by a quietly insistent question: which of these two parties has the greater fire-power..?
… especially in the period between Chris ‘tough justice’ Grayling‘s introduction of tribunal fees in July 2013, and Unison’s success in showing them the door four years later. My claim predated fees; my appeal did not. But now, with Judge Eady having found the type/terms issue deserving of Appeal Hearing, the likelihood of UCU backing me had risen.
It helped, was essential in fact, that post-retirement I’d continued to pay monthly subs but only Kaye, who’d assumed I left the union when I left SHU, saw the significance when, as an aside in an email on another matter, I alluded to my continuing UCU membership. She knew I met other criteria – active union interest, wider import of case4 and newly enhanced prospects of success – and concluded I had a fighting chance of gaining UCU legal support.
It came at the eleventh hour. With just two days to get up to speed the barrister turned in, says Kaye, a class act. His appearance was the third of my three game changers.
But who is this “Matthews” that Kaye refers to?
In previous posts I spoke of the Fixed-term Workers (Prevention of Less Favourable Treatment) Regulations, 2002. These hold an employee of four years’ continuity under one or more fixed-term contracts to be a permanent employee. I spoke too of the fact that, back in 1983, Ford v Warwickshire established that routine and foreseeable work cessations, like those a part time lecturer makes during college vacations, may not be deemed breaks in service continuity.
And I’ve spoken of my belief that both of these things – together with Sheffield Hallam’s modus operandum – were focusing the minds of that assembled Governors sub-committee which, on June 26, 2000, approved the scheme set before it by their HR Director as a means of bypassing the letter, and pissing on the intent, of the impending Regulations.
(Don’t get me wrong. I’m sure they weren’t consciously thinking in such stark, such crude terms. They doubtless saw themselves as Just Doing Their Job, trying to maintain SHU’s operational flexibility. But then, hadn’t those Daily Mail fulminators against political correctness gone mad seen themselves as voices of common sense, in the face of such erosions of the English Man’s hard won liberties as the Race Relations Act 1965, the Sex Discrimination Act 1975?)
Meanwhile I contextualised in this post the Part-term Workers (Prevention of Less Favourable Treatment) Regulations 2000, and showed its formidable – some say Catch-22 – demand on claimants. That demand – for a full time comparator on the same type of contract – furnished, in the eyes of Sheffield Hallam, impenetrable defence against any of its ‘zero hour’ academics foolish enough to bring the kind of claim I have brought.
Which takes us to Matthews v Kent & Medway, alluded to in Kaye’s email of March 23 by the fact of Sheffield Hallam’s attempt to argue – with the Judge making clear she was having none of it – a crux point on the basis of arguments by the sole dissenting Law Lord of a five strong panel. Matthews was not a lone claimant. Rather, his name is legal shorthand for a class action he and fellow part-time firefighters brought against their local authority employer. That action failed at Employment Tribunal, failed at Employment Appeal Tribunal and failed again at Court of Appeal. It then went to the House of Lords but, goodness me, just look at the time!
More on Matthews v K & M in the next thrilling instalment ….
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- These began with the Race Relations Act 1965, continued through gender equality legislation of the next two decades and turned to disability in the nineties – setting a context, by end of century, that made the outlawing of workplace discrimination on ground of age or sexual orientation a logical next step.
- Kaye refers here to one Alan Dainty, a senior HR manager at SHU, now retired. He is remembered by all who crossed his path. Me, I remember him best for the way, on announcement of the 2013 ruling, he stood without a by-your-leave to strut from the courtroom. It being a hot day, all windows were open. If he didn’t do it with intent, an almighty draught saw to it that the door slammed after him with resounding clang.
- May 4: it was premature of me to say this. As part four shows, the Regulations 2000 set a second test whose failure may yet prevent my claims being Heard.
- From the moment our appeal went live, following Eady’s realisation that it housed a real issue in need of the close consideration of an Appeal Hearing, Kaye was insistent that, win or lose, this looked set to become a landmark ruling.