The EAT has handed down its decision in Carl v The University of Sheffield , which is authority for the following propositions:
- a Claimant seeking to establish unlawful less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 must be able to point to a real comparator who amounts to a “comparable full-time worker” under reg 2(4). Clause 3.2 of the Part Time Worker Directive 97/81/EC did not require that a hypothetical comparator is available to a part time worker complainant.
- it is not necessary that the treatment was only on the ground of part time status. Rejecting the approach in Gibson v Scottish Ambulance Service (which focused on the presence of the word “solely” in the Directive) and preferring Sharma v Manchester City Council, the EAT held (para 42) that part time working must be the effective and predominant cause of the less favourable treatment complained of, but need not be the only cause.
On the facts, the EAT held that the Tribunal had been entitled to find that the alleged comparable full-time worker in the case, Ms McClelland, was not properly regarded as a true comparator. Unlike the position in Matthews v Kent & Medway Towns Fire Authority, the claimant and Ms McClelland did not undertake the same work, and the Tribunal had been entitled to take into account the differences in what they taught, their job specifications, how they taught as well as their skills, qualifications and educational achievements.