On March 23 this year, Employment Appeal Judge Mary Stacey overturned two previous Employment Tribunal rulings that my claim against Sheffield Hallam University of less favourable treatment as a part time employee could not be heard. In what looks set to be a judgment with wider import – given widespread use by universities and colleges of zero hour and other contracts designed to bypass Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000 and Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 – Judge Stacey ruled that those earlier Tribunals had erred in concluding that my zero hour contract was of a different type to that of my full time comparator, and on that basis dismissing my claim.
After months of waiting, Judge Stacey’s written reasons were published in late May, and can now be viewed in their entirety by all interested members of the public.
They have attracted much comment, in particular from legal firms specialising in employment law. A search on “Roddis v Sheffield Hallam”, besides eliciting both the Written Reasons and my own writings on this site, returns many instances of professional observation on the case’s significance.
This for instance. Writing in Cloisters, under the header, Zero-Hours Contracts and the Part-Time Workers Regulations: Roddis v Sheffield Hallam University UKEAT/0299/17, Jonathan Cook (not, I think, he of Blog from Nazarath fame) sums up the impact of Roddis v Sheffield Hallam in a way that addresses, second sentence below, the circular reasoning I have from the outset declared to be inherent to the way the Regulations 2000 were interpreted:
The EAT’s judgment provides welcome clarification of the position of individuals employed under purported zero-hours contracts under the Part-Time Workers Regulations. It is now apparent that the label applied to a contract is not determinative for the purposes of the comparison, as that would defeat the legislative purpose of the Regulations. It is necessary for Tribunals to examine the substance of the contractual relationship, and if the contract of a Claimant and his or her comparator fall within the same category under Reg. 2(3) that is sufficient for the purposes of Reg. 2(4)(a)(i).
To be sure, Mr Cook’s tone is more restrained than mine when, in Roddis v Sheffield Hallam Part 4, I wrote …
… for claims of unfair treatment on ground of race, sex, age etc a hypothetical comparator will do … [but] 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.
But I was perhaps unfair. On the question – explored in Roddis v Sheffield Hallam, Part 3 and in Roddis v Sheffield Hallam, Part 4 – of contract type, the 2000 Regulations may be accused of insufficient clarity but that is all. The circularity lay in their interpretation. In effect my own employment tribunals, and those of other unfortunates, held contracts to be of a different type purely because they had a different name – and because their terms differed. It was precisely to outlaw less favourable terms between contracs of the same type that the 2000 Regulations were framed. For eighteen years employers like Sheffield Hallam University have used that circularity of interpretation as a means of dodging their responsibilities.
Judge Stacey’s ruling has called time on that.