THE INDUSTRIAL TRIBUNALS

CASE REF:  2366/15

CLAIMANT:			Mark Kitson

RESPONDENT:		Alpha LSG Ltd

DECISION 
The unanimous decision of the tribunal is that the claimant was not less favourably treated by the respondent than a permanent employee on the ground of his fixed-term employment status and his claim is therefore dismissed.

Constitution of Tribunal:
Employment Judge:		Employment Judge Greene
Members:				Mr C McIlwaine
					Mr T Carlin

Appearances:
The claimant appeared in person.
The respondent was represented by Ms Rachel Best, of counsel, instructed by Eversheds LLP.

Sources of Evidence

1.	The tribunal heard evidence from the claimant and, on behalf of the respondent, from Alistair Lynas and Erica Myers.  The tribunal also received an agreed bundle of documents of some 245 pages, witness statements and a schedule of loss.

The claim and defence

2.	The claimant claimed that he had suffered less favourable treatment contrary to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.  The claimant had earlier withdrawn his claims for equal pay and less favourable treatment on the ground of his part-time working status.  

	The respondent denied the claimant’s claim.

The Issues

3.	(a)	Was the claimant less favourably treated by reason of his fixed-term 
		employment, and

	(b)	if the claimant succeeds in his claim what is the appropriate remedy.

	The parties had agreed the quantum of the claimant’s claim at £2,327.20, should the tribunal find in favour of the claimant.  

Findings of Fact

4.	(1)	The claimant is a student currently pursuing a university education.  He was 
		also engaged in seasonal work for the respondent. 

(2)	The respondent is a company providing catering, retail and logistical services from facilities located at airports throughout the United Kingdom.  

(3)	The claimant was employed, under a seasonal contract of employment, as a bonded warehouse assistant under two separate contracts.  He worked for the respondent from 14 June 2014 to 11 September 2014 and then from 1 May 2015 until 20 September 2015.  

(4)	During his employment, under the seasonal contract, the claimant earned £6.50 per hour for 42.5 hours per week although during his 21 weeks of employment his contracted hours were exceeded on 18 of those weeks.  

(5)	His current claim relates to his second period of employment from 1 May 2015 until 20 September 2015. 

(6)	The claimant received the same rate of pay for overtime work as for normal working time.

(7)	The claimant worked with two colleagues, Michael McNally and Filip Liwerski, whom he assumed were permanent employees and who did the same work as he did.

(8)	Michael McNally and Filip Liwerski were paid at a higher rate of pay than the claimant, he discovered.  They both received a rate of pay at 1.5 times their normal salary for the first eight hours of overtime worked and double time for any other hours of overtime worked thereafter.

(9)	The respondent accepts that Filip Liwerski is a permanent employee but asserts that Michael McNally was a fixed-term employee.

(10)	It was not disputed that the claimant was receiving lesser benefits than Mr McNally and Mr Liwerski.
(11)	By reason of an internal investigation, unconnected with this claim, a number of employees left.  Thereafter the claimant was the only person paid at his rate of pay in his department.  All others were paid at a higher rate, although some were doing the same duties as the claimant.

(12)	The claimant’s contract of employment describes him as a seasonal worker on a rate of pay of £6.50 per hour with “no payment normally for O/T”.

(13)	The respondent describes its employees’ duties as core roles and non-core roles.  The claimant’s work was considered as a non-core role.

(14)	From March 2014 the respondent decided that non-core role employees recruited after 20 March 2014, would be paid at the rate of the national minimum wage.  The wages of core employees were not affected.

(15)	Filip Liwerski was employed from 14 January 2008 and scheduled to finish on 31 October 2008 as a bar packer (non-core) doing 42.5 hours per week.  He started at £6.66 per hour.  His first eight hours of overtime were paid at 
1.5 times his normal rate of pay and thereafter at twice his normal rate of pay.  The claimant accepted that he was a fixed term worker when he started working for the respondent but was made permanent in March 2010.

(16)	Yash Paul Goel was appointed on 17 February 2015 as a general assistant on a permanent contract which paid £6.50 per hour and overtime was paid at the same rate.

(17)	Constancio Rodrigues was appointed on 16 June 2015 as a bar packer (non-core) permanent employee at £6.50 with the same rate of pay for overtime.

(18)	Joel McTaggart was appointed on 26 April 2013.  He was a seasonal worker paid at £7.06 per hour with overtime at 1.5 times his normal rate of pay.

(19)	Joel McTaggart was re-appointed on 21 June 2015 as a seasonal worker at a rate of pay of £6.50 per hour with payment for overtime worked at the same rate.

(20)	Michael McNally was paid £7.06 per hour in October 2013 which was increased to £7.40 per hour from November 2015.

The Law

5.	(1)	A fixed-term employee has the right not to be treated by his employer less 
		favourably than the employer treats a comparable permanent employee -

		(a)	as regards the terms of his contract; or

(b)	by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

	(2)	The right not to be treated less favourably than a permanent employee applies only if –

(a)	the treatment is on the ground that the employee is a fixed-term employee, and

(b)	the treatment is not justified on objective grounds.  (Regulation 3(1) and (3) Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002).

(3)	Where a fixed-term employee is treated by his employer less favourably than the employer treats the comparable permanent employee as regards any term in his contract, the treatment in question shall be regarded for the purposes of Regulation 3(3)(b) as justified on objective grounds if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment (Regulation 4 Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002).

(4)	A “permanent employee” means an employee who is not employed under a fixed-term contract, and any reference to “permanent employment” shall be construed accordingly (Regulation 1(2) (Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002).

(5)	For the purposes of the 2002 Regulations an employee is a comparable permanent employee in relation to a fixed-term employee if, at the time when the treatment that is alleged to be less favourable to the fixed-term employee takes place – 

		(a)	both employees are –

			(i)	employed by the same employer, and

(ii)	engage in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualifications and skills; and

(b)	the comparable employee works or is based at the same establishment as the fixed-term employee or, where there is no comparable employee working or based at that establishment who satisfies the requirement of sub-paragraph (2(1)(a), that he works or is based at a different establishment that satisfies those requirements (Regulation 2 Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.

(6)	In Matthews & Others –v- Kent and Midway Towns Fire Authority & Others [2006] IRLR at page 367 the House of Lords considered a claim in which a comparison was made between a part-time and full-time worker based on the Part-time Workers Regulations which have wording in the same terms as the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.  The House of Lords undertook a comparison between the work done by a part-time and full-time worker to ascertain whether they were engaged in “the same or broadly similar” work.  The head note records:-

		“... Whether the work on which the full-time and part-time workers are engaged is “the same or broadly similar” has to be approached in the context of Regulations which are inviting a comparison between two types of workers whose work will almost inevitably be different to some extent.  In making that assessment, particular weight should be given to the extent to which their work is exactly the same and to the importance of that work to the enterprise as a whole.  If a large component of their work is exactly the same, the question is whether any differences are of such importance as to prevent their work being regarded overall as “the same or broadly similar”.  Where both full and part-timers do the same work, but the full-timers have extra activities with which to fill their time, this should not prevent their work being regarded as the same or broadly similar overall.  The importance of the same work which they do to the work of the enterprise as a whole is also of great importance in this assessment.  The fact that full-timers and part-timers both do some of the same work would not mean that their work was the same or broadly similar where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks.  It is equally easy to imagine work places where the full-timers and part-timers spend much of their time on the core activity of the enterprise, so that the fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar.”

6.	Application of the law and the findings of fact to the issues

	(1)	The claimant was a seasonal worker who was paid the minimum wage since he began his second period of employment on 1 May 2015.

	(2)	The claimant identifies two comparators, Filip Liwerski and Michael McNally.  Mr Liwerski began on 14 January 2008 as a fixed-term employee and from March 2010 became permanent.  He is paid at a higher rate than the claimant and gets additional payments for overtime worked.

		The respondent says he is not a proper comparator as he was made permanent before the new pay policy came in for non-core workers in March 2014.

		The tribunal concludes that he is a proper comparator having regard to a comparison of the work done and the analysis of the House of Lords in Matthews and Others v Kent and Midway Towns Fire Authority and Others.

	(3)	Mr McNally is said by the respondent to be a fixed-term employee on an extended contract but paid at a higher rate than the claimant.  However the respondent was unable to produce any evidence of a renewal or extension of his contract or indeed any contract.  It seems to the tribunal, having regard to  Regulation 8(2) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 that he was probably a permanent employee.  However it is unnecessary for the success of the claimant’s claim to identify two comparators and the tribunal have already found that Mr Liwerski is a proper comparator.

	(4)	It is clear to the tribunal that the claimant was less favourably treated than Mr Liwerski in the salary paid to him for his basic work and in the rate of pay paid to him for doing overtime.

	(5)	The respondent contends that the rate of pay paid by it to the claimant flows from its policy decision of 10 March 2014 that all non-core employees, whether permanent or fixed-term, would be paid at the rate of the national minimum wage.

	(6)	Mr McNally’s situation seems to contradict that.  The respondent described him as being, for some reason not explained to the tribunal, on a protected salary.  There is evidence from other establishments which shows that non-core workers who were recruited after March 2014, whether permanent or fixed-term, were being paid at the rate of the national minimum wage.

	(7)	On balance, and not without difficulty, the tribunal concludes that there is not persuasive evidence that the reason for the difference in treatment is the claimant’s fixed-term employment status.  Accordingly he has not satisfied the requirements of the legislation in order to sustain his claim of less favourable treatment on the basis of his fixed term contract of employment. 

	(8)	It is therefore not necessary to consider whether the respondent could objectively justify the less favourable treatment.  However it appears to the tribunal that, on the basis of the evidence before it, the objective justification defence would not have been established.

	(9)	Accordingly we dismiss the claimant’s claim.  

Employment Judge:

Date and place of hearing:	 22 March 2016, Belfast.

Date decision recorded in register and issued to parties: