Episode 4 puts Matthews v Kent & Medway under the microscope …
… but first a few general remarks.
Part 3 opened with legislation designed both to outlaw social exclusion and effect a wider shift in how we view racism, sexism, homophobia, ageism and medical model takes on disability. On both the social engineering and punitive fronts I drew parallels with two milestones – Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000, and Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 – in employment law.
But I also identified two critical differences. One is that laws framed to tackle abuse of Britain’s precariat have been far less successful than those aimed at social exclusion. Actually, that is to praise with faint damnation. It’s not that things have improved at snail’s pace. It’s not even that they haven’t improved at all. ‘Things’ have fallen, in the richest nations on earth, into a frenzied tailspin since 2000. Don’t take my word for it – see what the World Economic Forum has to say on the subject.
The second difference is the technical but far reaching one that for claims of unfair treatment on ground of race, sex, age etc a hypothetical comparator will do – “yes, it is because I’m black!” – while claims of unfair treatment as a part timer require, under the 2000 Regulations, a real life full time comparator on the same type of contract. Let me run that past you again – a real life full time comparator on the same type of contract.
Do you get the oxymoronic, Catch 22 nature of that demand? In morality if not in law, the zero contract is the unfair treatment! This, as SHU’s HR document of June 2000 shows with pristine lucidity, is why universities – business enterprises whose public sector status becomes more debatable with each passing decade1 – are so addicted to zero hours contracts and other forms of phoney mutuality, some of them worse still.
This second difference, of course, feeds into the first. If the Regulations’ bar was lower, so too would be the ranks of the precariat. But let’s bring in a third distinction: between causing and enabling. That outlawing of social exclusion targets those who loathe and fear The Other and, driven by that fear and loathing, delight in The Other’s suffering. But Sheffield Hallam took no pleasure in harming me. It loved me, and still does love eight hundred and sixty-two2 of my contractual kindreds for the operational flexibility they bring as dowry.
No, SHU mistreated me because (a) it believed it could get away with it and (b) with exceptions outlined in part two – my specific claims of abuse – it was rational to do so.3 Which brings us to the most important distinction yet: that between exclusion and exploitation.
The two are linked, but not the same. In early capitalism, contempt for certain groups – African slaves, native Americans/Antipodeans and Asian ‘coolies’ – was driven and aggravated by the need to find ideological justification for their exploitation or dispossession.4 (Let’s not even get started on women’s exploitation. It’s not just a vast subject but one which poses, through the nature of the housewife’s and mother’s economic roles within capitalism, the only challenge to marxist understandings of value creation that I can even begin to take seriously.)
But by the fifties and sixties, racism, once ideologically vital to colonialism, had passed its sell-by date. Worse, it was getting in the way and would continue to do so as advanced capitalism moved to forms requiring a more sophisticated (or simply bigger) workforce, and high levels of consumerism. One aspect of the shift was an erosion of the business case for racism. Why limit upward mobility on such arbitrary grounds as skin colour – or religious faith, sexual preference and (subject to job suitability and feasibility of meeting special needs) age and disability? Why continue to deny access to the Good Life to any social – as opposed to economic – grouping within the West5 on the basis of identity traits it was no longer useful to hold in contempt? 6
Now things fall into place. Answers to those questions are vanishingly thin but it isn’t so for the question: why stick a third of Sheffield Hallam’s academic workforce on a zero hours contract?
Social exclusion is rational only insofar as it underpins exploitation. It will outlive exploitation, sometimes in even more virulent, darkest-before-dawn forms, but its days will be numbered.
Exploitation on the other hand is always rational, albeit at times short-sighted. The challenge for those who framed the Part-time Employees Regulations 2000 was that of walking the line between moral policing and the interests of profit. Nowhere is this reflected more starkly than in that Catch-22 demand for a named, full time comparator on the same type of contract. I will always, whatever the outcome for me, be grateful to Judges Eady and Stacey for the common sense (which ain’t that common) and independence of mind (rarer still) they brought to bear on my case. Caution is in order, prior to release of Written Reasons which all parties will pore over, but it seems likely that thousands of academics will be similarly in their debt. Let’s not get too jubilant though. This judgment says one thing, and with singular clarity. A lecturer agreeing to teach a fourteen week semester is not to be likened to Ms Wippel and a million other casuals in the same boat. They, alas – and this is no reflection on Judge Stacey, who could not have found otherwise – still sail in a rotten hulk which in a caring society would never have been allowed to put out to sea.
Were Matthews and Sons on the same type of contract as full-time colleagues? And if so, were they doing ‘broadly similar’ work? Let’s take a closer look.
Yesterday, Kaye emailed.
… this is the relevant clause from the European Directive:
‘Comparable full-time worker’ means a full-time worker in the same establishment having the same type of employment contract [and] engaged in the same or a similar work/ occupation, due regard being given to other considerations which may include seniority and qualification/ skills.
My reading is that it is not referring to “work” as verb but as noun or it would have read “similar work/occupation” not “a similar work/occupation”. The PTWR omits the words “a” and “occupation”. The draughtsman probably did not realise the significance. Domestic legislation may be more but not less favourable.7 This is the PTWR:8
(4) A full-time worker is a comparable full-time worker .. if (a) both are (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and (b) the full-time worker works or is based at the same establishment as the part-time worker …
This wording does give a higher hurdle to jump. It introduces the word “broadly”, which is helpful, but omits “occupation” [so] two teachers, one teaching Russian and the other French, could not be said to have broadly similar work … but they do have a similar occupation. It is irritating that employers try to manipulate the law by technicalities instead of defending their employment practices. There has been no defence of that.
I need to get something off my chest. Previous posts strongly imply – call it story-teller licence – that Judge Stacey’s ruling of March 23 gives me unimpeded access to a Tribunal Hearing of the four specific allegations9 set out in part two. But you’ll gather from Kaye’s email that this is not the case. The Regulations 2000 pose two tests, not one, before the particulars of a claim may be Heard. I’ve won on contract type (unless SHU see fit to go to Appeal Court and perhaps even House of Lords) but must now do the same in respect of ‘broadly similar work’.
Well, you say: talk about leading us down the garden path! But before you quit in disgust, and turn to what Meghan might wear when she weds Harry, hear this. We’d have been fine with the 2013 tribunal applying both tests but Eversheds LLP, acting for Sheffield Hallam, said no. They wanted contract type considered in isolation at that first Hearing, leaving ‘similar work’ to be decided at a later Hearing. Of course, they hoped this later Hearing, when my specific claims might also be Heard, would never take place. But in the event it did, they further hoped that my claim would fail the ‘similar work’ test and thus never get as far as those specifics.
At our ET we believed they were going to consider type and work but Eversheds in their skeleton argument said that it would be appropriate only to consider “type” and Judge Little went along with that. Eversheds suggested that broadly similar work should be decided at the ET with less favourable treatment. I don’t see their logic but it must have suited them.
I may end up wiping egg from face, licking dust, eating humble pie and doing other things of a gastronomically clichéd nature but … similar work seems an easier test than contract type. For one thing it lacks that je ne sais quoi – that essence of hole-in-the-bucket10 which so endeared the zero hours contract to Sheffield Hallam University in June 2000. For another, let’s turn to those doughty firefighters but skip the particulars: in part to keep the big picture in view, in part because said particulars aren’t easily unearthed. Though Matthews v Kent & Medway is a much cited case, discussion tends to focus not on its nitty gritty but the principles at stake.
Suffice to say the claimants believed their treatment as part time firefighters contravened the Regulations 2000 and, in taking their case to the wire, gave new meaning to not accepting no for an answer. Here, with date only of final triumph since the others have proved elusive, is the sequence of events in Matthews et al’s long road to victory:
Employment Tribunal – finds their claims may not be Heard as they fail both the contract type and similar work tests.
Employment Appeal Tribunal – upholds both findings.
Appeal Court – overturns the tribunal finding on contract type but upholds that on similar work. This is an important judgment of potentially landmark significance but does not help Matthews et al with their specific claims. Both tests must be passed for these to be Heard.
House of Lords (March 1, 2006) – panel of five Law Lords rule by a majority that the work done by part-time firefighters was indeed ‘broadly similar’ to that of full time colleagues.
Here’s what one member of that five strong panel, Baroness Hale – we really must have more women in the upper echelons of the law! – had to say on the ‘broadly similar work’ question:
… in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.
Quite. Dear Liza aside, and bearing in mind the dangers of extrapolating from small data sets, women do seem more alert to the pitfalls of circular reasoning.
In the realms of jurisprudence at any rate.
Rest assured that when we get our day(s) in court we will be strenuous in resisting all and any efforts to attach too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time. It may well be that full time firefighters put out more blazes, prise more foolish heads from railings and snatch more cats from the nation’s rooftops than their part time brothers and sisters do. It may well be that they and they alone keep fire engines clean, produce duty rosters and do other ancillary duties not easily performed by part timers – leaving the latter to do nothing more arduous than shin down a pole and up fire ladders to point hoses in a broadly useful direction.
But if not polishing fire trucks to the reddest of gleaming redness is the inevitable result of not being full time, might the same apply to differences between the duties of full time lecturers, and those of part time colleagues? Just as the core duty of a firefighter is to fight fires (and pluck cats from rooftops) can we not say the core duty of a lecturer is to lecture and, by this and other means, pluck students from the dark vales of ignorance and relocate them on the sunlit uplands of career-focused erudition?
Well I guess that depends on what else those full time lecturers, Mark in particular, get up to in the line of d. On second thoughts, no – scratch that. I needn’t guess at all when for most of the nineties and a soupcon of the noughties I myself lectured full time at Sheffield Hallam Uni. But I must keep a few cards up my sleeve else you won’t come back for part five, will you?
One last thought, with yet another snippet from a Kayemail. It probably doesn’t affect my case at this stage but UCU, other unions and individual claimants under the Regulations 2000 might take note. Kaye wrote this afternoon that:
… Matthews and others were allowed to compare themselves with “full time firefighters” who had better pension rights, not a named comparator. So on that basis, of course, a part time teacher should be able to make a comparison with full time teachers who are treated more favourably, rather than being restricted to a named person. Nowhere in the Directive or Regulations does it say the comparator must be a named individual.
Food for thought, no? And not without mystery. Responding to Matthews v Kent & Medway’s distinct whiff of the Edwin Drood – of the Schubert’s Unfinished – Kaye goes on to say:
I think Matthews must have been settled out of court after the House of Lords ruling as there is nothing reported beyond that.
That’s likely. Public sector bodies have a habit of using our taxes to conceal their dodgy doings and general ineptitude by way of out of court pay-offs attached to non disclosure agreements, aka gagging clauses. Ditto universities. A chap called Ian Benson dedicates a great deal of his time and energy to establishing by Freedom of Information requests the extent of this practise. See his excellent website, AcademicFOI.Com – this page in particular.
And that’s me done for the time being. I’ve taken this tale – what, you think I don’t have others? – from the precariat as far as I can. There’ll be a part five, of course there will, but it must await release of Judge Stacey’s Written Reasons and/or my Tribunal Hearing.
Meanwhile, I really do have to get on with Why the.West hates Putin, Part 3 …
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- Andrew McGettigan does excellent empirical work here. Try his website – its posts on student loans essential reading – and book, The Great University Gamble.
- This figure, given in response to a Freedom of Information request, is based on data accurate as of February 1, 2013.
- I use the word ‘exceptions’ advisedly, to flag another distinction. It was rational if immoral for SHU to want flexibility at my expense. The use of that flexibility by junior managers was either irrational or served petty agendas tangential to or even at odds with SHU objectives.
- This points to a materialist as opposed to idealist understanding of history. For more on this, see Why the West hates Putin: Part Two.
- ‘Within the West’ is an important qualifier. Racism in subtler forms has us indifferent to economic domination, backed by armed force, that keeps the global south impoverished. And dog-whistle orientalism, both anti-Slav and anti-Arab, helps Westerners believe Assad and Putin guilty of deeds that only make sense as comic book, evil-for-evil’s-sake cruelty.
- We need to go lightly here, to avoid crude reductionism. I’ve no wish to downplay the heroism of the civil rights movements of the USA and north of Ireland, nor that of feminists and gay rights activists. They fought valiantly against vicious reaction. But their bravery and growing savvy, though necessary conditions for victory, were not sufficient ones. They won also because their demands, posing no existential threat to capitalism, could be conceded.
- Kaye makes a weighty point. EC Directives allow national law to offer more protection but not less. A case might be made – this side of Brexit – that the Regulations 2000, wittingly or otherwise, fail to honour this principle.
- Kaye uses ‘PTWR’. I use ‘Regulations 2000’ or, if context makes it clear, ‘Regulations’. In all cases we mean Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000
- Together with others not yet specified, even in summary form, in these posts.
- Another analogy is from Catch-22. The painfully shy Major Major had one simple rule: subordinates could see him in his office only when he was not there. It’s hard to read the first two rulings in Matthews, my own in 2013 and rulings equally adverse on other cases (successful claims under the Regulations being few and far between) as other than a demand that claims of an unfair contract show a comparator whose contract is the same but not unfair …