In this article, Chris Dobbs looks at a recent case where a part-time employer claimed less favourable treatment due to not receiving paid breaks. Chris discusses the implications of the EAT's decision for employers.
Case Background
In Forth Valley Health Board v James Campbell, Mr Campbell, a phlebotomist, worked an average of 16 hours per week on a six-week rota.
His shifts were of different lengths, but on weekdays he worked between 7.30am and 11.30am without a break.
His full-time colleagues, who worked over six hours on the same days, did get a 15-minute paid break.
At other times Mr Campbell got a paid break as well when he worked over six hours, for example at weekends.
Can a part-time worker be treated less favourably?
Mr Campbell claimed that denying him a break during the shorter shifts was less favourable treatment on the grounds he was a part-time worker and therefore unlawful under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Surprisingly, Mr Campbell succeeded at first instance when the employment tribunal agreed with him. However, the employer appealed and the Employment Appeal Tribunal (EAT) upheld their appeal.
What is considered ‘less favourable treatment’?
The EAT said Mr Campbell was not given a paid break when he worked the shorter shifts precisely because they were that, i.e. under the six hour threshold, and not because of his part-time worker status.
This was demonstrated by the fact that, when Mr Campbell did work shifts longer than six hours at the weekend, he did receive a paid break.
An Employment Specialist’s View
Chris Dobbs says: “This case shows that even employment tribunal judges can get it wrong sometimes, particularly in discrimination cases.
Here, in the first instance, the judge failed to correctly identify the reason for Mr Campbell not receiving paid breaks on weekdays.
This is a common fault among claimants in discrimination cases across the protected grounds.
Similarities with mandatory vaccination cases…
We are seeing a similar mistake at the moment with claimants arguing that mandatory vaccinations in the care sector is a form of direct discrimination because of their disability or their religion or belief.
While the policy may be indirect discrimination (and hence potentially justified) it cannot be direct discrimination as it applies to all people crossing the threshold of a care home and cannot be less favourable treatment on any particular protected ground.”
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