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In Moultrie and others v the Ministry of Justice the Employment Appeal Tribunal (EAT) has upheld an employment tribunal (ET) judge's finding that the work of part-time, fee-paid medical members of tribunals was not the same or broadly similar as that done by full-time regional medical members despite there only being a 15% difference in their duties.
In any claim for unfavourable treatment under the Part-Time Workers Regulations 2000 (Regulations) the part-time worker must identify a full-time comparator who is employed by the same employer and engaged in the same or broadly similar work.
Fee-paid medical members ("FPMMs") of certain tribunals (including the social security and child support tribunal and the mental health tribunal) claimed that they had been treated less favourably on the grounds of their part-time status as they were excluded from joining a pension scheme, unlike full-time regional medical members ("RMMs") of the tribunals who were identified as comparators.
The ET considered whether the RMMs were appropriate comparators particularly whether they engaged in work which was the same or broadly similar to the FPMMs. The FPMMs spent 100% of their time sitting in a judicial capacity compared to the RMMs, who spent 85% of their time in a judicial capacity and 10% in appraisal, recruitment and training-related activities and 5% doing tasks delegated to them by chief medical members. The RMM role was intentionally created as an entirely new strategic and leadership role creating a new layer in the structure. While only 15% of the work of RMMs was spent on different activities, it was held that these tasks were qualitatively different from those done by the FPMMs. The additional tasks done by RMMs were of such importance that they trumped the fact that for most of the time the work carried out by the two groups was the same. The FPMMs appealed.
The EAT dismissed the appeal and held that the ET had correctly considered whether, if a large component of the work is exactly the same, the differences are of such importance as to prevent the work being regarded as overall the same or broadly similar. It had correctly concluded that the work done by the RMMs over and above what the FPMMs did meant that the RMMs did not engage in the same or broadly similar work to the FPMMs.
This case is a useful reminder for employers that part-time workers may not necessarily be able to identify appropriate full-time comparators in a claim for unfavourable treatment on the basis of their part-time status even where a large part of the work carried out by the two groups is the same. Differences in the work carried out may be of such importance so as to prevent the overall work being the same or broadly similar under the Regulations. In a comparison of work between part-time and full-time groups each case will turn on its facts and an assessment will need to be made on the facts of each case on the basis of the work actually done.