Appeal No. EAT/0426/03 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 August 2003
Judgment delivered on 2 September 2003

Before
HIS HONOUR JUDGE ANSELL
MR J C SHRIGLEY
MR G H WRIGHT MBE

ROYAL MAIL GROUP PLC	APPELLANT

MRS J M LYNCH	RESPONDENT

Transcript of Proceedings
 
JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DANIEL BARNETT
(of Counsel)
Instructed by:
Messrs Weightmans Solicitors
41 Spring Gardens
Manchester M2 2BG	
For the Respondent	MR DENNIS McWILLIAMS
(Trade Union Representative)
Instructed by:
Communication Workers Union
1 Clapham Square
Leamington Spa
Warwickshire CV31 1JH	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from a decision of an Employment Tribunal held at Liverpool on 24 March 2003, who in a decision sent out to the parties on 10 April 2003 decided that the Appellants Royal Mail Group Plc. had treated the Respondent, Mrs Lynch, less favourably on the ground that she was a part-time worker and that such treatment was not justified on objective grounds.  She also claimed that she had been discriminated against on the grounds of her sex, but the Tribunal dismissed this application.  Leave for this hearing was given by His Honour Judge Birtles in chambers on 5 June 2003.

2	The Respondent had begun working for Royal Mail in 1989 and by around 1992 was working part-time at 20 hours per week.  In June 2002 an advertisement was circulated for volunteers to apply for vacancies, this advertisement indicated that successful applicants would become permanent full-time employees.  The Respondent successfully applied for one of the vacancies but having been informed of her success before taking up the position she was informed that as she had formerly been a part-time employee she would only be appointed to the post on a temporary basis.  The Tribunal found that both parties understood this to mean that she might at any time be returned to part-time hours by Royal Mail.

3	On 15 August she was sent a letter allegedly confirming these arrangements.  That letter was headed “Temporary Variation in Contract of Employment” and in the body of the letter her working hours of 40 hours per week and her pay were set out.  Subsequently, she did indeed take up the full-time role and has been a full-time employee since that time.

4	At the beginning of their Decision the Tribunal set out the position of each party in relation to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 claim:

2	“Firstly, she claimed she had been unlawfully discriminated against on the grounds of her part-time status.  She had been a part-time worker when she had applied for and secured a full-time job.  However, because she had gone into that position from a part-time post, it was described as “temporary”.
3	Royal Mail conceded that this was the case and claimed that the effect of describing the post as “temporary” was that they were at liberty to return her to a part-time position at any time.  They considered that they required that flexibility because of commercial considerations and therefore that the treatment was justified.”

5	From that summary it appeared therefore that the main issue in the case was that of justification.  However, for reasons that are not entirely clear to us, since it does not seem to have been argued by either party at the hearing, the Tribunal based their decision primarily on the effect of the letter dated 15 August 2002 headed “Temporary Variation in Contract of Employment”.  The Tribunal held that the word “temporary” in that context could have a number of different meanings such as the contract was capable of being varied at some stage in the future and did not unambiguously indicate the desire of Royal Mail that they were entitled to return her to her old position without consent.  They therefore held that the only effect of the letter was to bring about a genuine but mistaken belief on the part of Mrs Lynch as to her future; and she was thereby subject to a detriment within the meaning of Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

6	The Tribunal then went on to find that because the Appellant’s interpretation of the document was not correct, they had failed to achieve the end that they desired, namely the ability to return the Applicant to part-time hours, and that they were therefore not able to justify their actions, notwithstanding that there may well have been commercially sound reasons to take the action that they did.

7	Before turning to the Appellant’s case we set out the relevant regulations.  Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

5	(1)	“A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –
		(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 conferred by paragraph (1) applies only if – 
		(a)	the treatment is on the ground that the worker is a part-time worker, and
		(b)	the treatment is not justified on objective grounds.”

8	A comparable full-time worker is defined by Regulation 2 (4):

(4)	“A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place-:
(a)	both workers 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 or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.”

9	In the light of these regulations, Mr Barnett makes a number of interesting and well-argued complaints in relation to the Tribunal’s findings.  Firstly, he contends that the Tribunal failed as they required to do to identify a comparable full-time worker.  He contrasts the position with other forms of discrimination which have provided for the concept of a hypothetical comparator.  For example, under section 1 (1) (a) of the Sex Discrimination Act 1975:

1	(1)	“…a person discriminates against a woman if: -
(a)	on the ground of her sex he treats her less favourably then he treats or would treat a man”
10	There are similar provisions under section 1 (1) (a) of the Race Relations Act 1976 and section 5 (1) (a) of the Disability Discrimination Act 1995.  Indeed he submits in the light of the recent decisions of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 516; and this court in the case of The Law Society v Kamlesh Bahl (judgment 31 July 2003, Mr Justice Elias presiding); the requirement to identify even a hypothetical comparator may have diminished.

11	He refers in particular to a decision of this Court dealing with the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Tyson v Concurrent Systems Incorporated Ltd (delivered 9 April 2003, His Honour Judge Burke QC) where, at paragraph 29 the court set out the position as follows:

29	“It does seem to us to be at least arguable that the familiar approach of the construction of a hypothetical comparator, where there is no like for like actual comparator, under the Race Relations Act 1976 and the Sex Discrimination Act 1975, is not apposite under these Regulations.  But if it is apposite, it can only become apposite once the exercise of comparison with an actual comparable full-time worker has been undertaken and no such actual comparable full-time worker has been identified.”

12	Mr McWilliams for the Respondent reminded us of the concession made by the Appellants which was recorded in paragraph 3 of the Tribunal’s Decision, to which we have already made reference, and submitted that the Respondents, in conceding that there had been unlawful discrimination on the grounds of her part-time status, were thereby accepting that she had been treated less favourably than a comparable full-time worker.  Further, in the course of the hearing Mr Barnett had referred us to a passage in the Respondent’s written statement.  There was material in that statement which was not disputed which indicated that the Respondent was the only part-time worker who was successful in obtaining a full-time vacancy.  We are therefore quite satisfied that a full-time comparator was indeed identified, within the Appellant’s concession.

13	There is an interesting argument as to whether if a full-time comparator cannot be identified, i.e. that none had actually applied for the position, although it was open to them, whether a hypothetical comparator could then be used.  However, in the light of our findings, it is not necessary for us to rule upon that issue.

14	Mr Barnett then moved on to deal with the Tribunal’s finding as to detriment and argued that a genuine but mistaken belief on the part of Mrs Lynch as to her future cannot amount to a detriment.

15	We had some difficulty in understanding why the Tribunal were suggesting that this was capable of amounting to a detriment against their findings that both parties were aware that she was going to be appointed to the post on a temporary basis; in other words, that she might at any time be returned to part-time hours by Royal Mail.  The Tribunal appeared to be saying that the wording of the letter may have led her to believe that this was not the correct understanding and that in fact she was being offered a form of permanent position.  Our difficulties increased during the hearing when we were informed by the Respondent’s representative that she had not actually received the letter of 12 August.

16	Mr Barnett submitted that in any event a detriment had to be viewed through the eyes of a reasonable worker – see Jeremiah v Ministry of Defence [1979] IRLR 436, paragraph 47; and that the detriment had to be material and substantial – see Jiad v Byford & Others [2003] IRLR 232, paragraph 25.  However, his main complaint relates to the Tribunal’s findings in relation to the letter itself and the use of the word “temporary” in the heading of the letter which “might have a number of different meanings”, together with the Tribunal’s findings that they were bound to adopt the interpretation most favourable to the Respondent.  He referred us to the decision of the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, which he contends sets out the contemporary view regarding how a court should approach the construing of contractual documents.  We need do no more than refer to the headnote, which reads as follows:

“…that in construing contractual documents the aim was to find the meaning which the document would convey to a reasonable person having all the background knowledge reasonably available to the parties, including anything which would have affected the way a reasonable man would have understood it, but excluding previous negotiations and declarations of subjective intent; that the meaning which a document would convey to a reasonable man was what the parties using its words against the relevant background would reasonably have been supposed to mean and included the possibility of ambiguity and even misuse of words or syntax; that the court was not obliged to ascribe to the parties an intention which plainly they could not have had…”

See also the speech of Lord Hoffman at page 912.

17	In the light of that guidance, coupled with the Tribunal’s findings that both parties understood before the date that the letter was written that she might at any time be returned to part-time hours by Royal Mail, we are of the view that the Tribunal were in error in their approach in relation to that letter; which could only be interpreted in the light of the agreed understanding between the parties.

18	Indeed, it seems to us that there was no need for the Tribunal to trouble themselves with that document since Royal Mail had already conceded that there had been discrimination in that they had sought to retain the right to return her to a part-time position as opposed to full-time comparators who had been offered similar full-time positions without conditions and that the only apparent issue therefore before the Tribunal was one of justification.

19	At the end of their decision the Tribunal did deal briefly with the issue of justification but held that the defence was not made out because the Appellant’s reliance on their interpretation of the document was not correct.  Again that was not the issue that had been placed before the Tribunal by the parties, which was whether the Appellants could justify their actions on commercially sound reasons.

20	Given the clear errors on the part of the Tribunal, we have no alternative other than to set aside their findings and order that this matter should be reheard by a fresh Tribunal.  In view of the concessions made by the Appellants at the first hearing, we would restrict that fresh hearing to the issue of justification.  Although we were concerned with the Appellants’ dealings with the one part-time worker, namely the Respondent, who was successful in obtaining a full-time position, it is not appropriate for us to substitute our own findings and therefore this issue must be returned to the Tribunal.