Appeal No. EAT/0272/02

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 March 2003
Judgment delivered on 15 April 2003

Before
HIS HONOUR JUDGE PROPHET
MRS R CHAPMAN
MR C EDWARDS

HENDRICKSON EUROPE LTD	APPELLANT

CHRISTINE PIPE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR LINDEN
(of Counsel)
EEF East Midlands Association
Barleythorpe
Oakham
Rutland
LE15 7ED	
For the Respondent	MR ALAN PIPE
(Representative)
5 The Moorings
Woodford
Kettering
Northants
NN14 4HN	

HIS HONOUR JUDGE PROPHET

1	Mrs Christine Pipe submitted an application to the Employment Tribunal at Bedford towards the end of April 2001 claiming that she had been unfairly dismissed by her former employer, who is the Appellant in this appeal.  She also complained of being discriminated against as a part time worker, and later provided further particulars of that part of the application.

2	Following a hearing before an Employment Tribunal, with Mr Robjant as Chairman and Mr Stopford and Mr Ferris as lay members, on 17 and 18 October 2001, she was successful in respect of both claims.  Compensation for unfair dismissal was awarded in the sum of £50,550.  There was no separate award given for the finding of her having suffered a detriment as a part time worker.

3	Mr Linden of Counsel represents the Appellant at this Full Hearing of the appeal, which is in respect of liability only.  Mr Pipe, the husband of Mrs Pipe, represents her, as indeed he did at the Employment Tribunal hearing.  Accordingly, there has been no legal representation on her behalf at any of the hearings, but Mr Pipe gave us today a 12 page written submission.

4	The appeal raises interesting issues as to the interpretation of the fairly recently enacted Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, introduced into domestic law following Council Directive 98/23/EC, and the interrelationship between those Regulations and the more familiar unfair dismissal provisions.

5	Mr Linden has helpfully traced the development of the Regulations from the Directive, emphasising that they do not cover applications for employment, but concentrate on providing protection for part time workers in respect of terms and conditions in their contracts.  However he readily accepts that Regulation 5(1)(b) extends the protection to:

“any other detriment”.

6	It is interesting in that respect that at the beginning of this hearing today, Mr Linden has expressly abandoned what had appeared to be a principal plank of his written skeleton argument ie a challenge to the statement by the Employment Tribunal that ‘detriment includes dismissal’ (see paragraph 9 of the Reasons).  That in turn makes it difficult, if not impossible, for him to support some submissions in his skeleton argument – for example at paragraph 4.3 where he says ‘Accordingly, dismissal cases are either within reg 7 or they are not within the scope of the 2000 Regulations at all’.

7	We must now set out, in brief form, what happened to Mrs Pipe as found by the Employment Tribunal in order to set the scene for the arguments presented to us.

8	Mrs Pipe’s employment with the Appellants began in April 1989.  In August 1990, at the request of her employers, she reduced her hours to 28.5 per week.  Thus she ceased to be a full time worker, and became a part time worker, and continued so for many years.  She was an accounting assistant, recognised as being in that capacity both experienced and competent.

9	From November 1999, there was some pressure put on Mrs Pipe by her employers for her to work full time, which she resisted.  In January 2001, she was one of 4 accounting assistants.  The other 3 worked full time, but had considerably less experience of working for the employers than she had.  Indeed the Employment Tribunal indicated that it accepted evidence that the combined length of service of the 3 other accounting assistants was less than one year.

10	She was advised in January 2001 that the employers had decided to have 3 accounting assistants instead of 4, but that all 3 must be full time.  She was told the next day that if she wanted to stay in employment she would have to become a full time worker instead of being a part time worker.

11	She continued to resist being compelled to work full time, having significant home and family commitments, but she offered to increase her hours to 32.5 per week, which would have brought her to only 5 hours per week short of being a full time worker.  The employers would not discuss how their wishes might be adjusted to accommodate her position, and insisted that her retention was dependent on her agreeing to work full time.  She was then dismissed.

12	Mr Linden’s legal analysis of what essentially is required to constitute a breach under Regulation 5 cannot be faulted.  It is, he submits, a 4 stage process.  First, what is the treatment complained of?  Secondly, is that treatment less favourable than that of a comparable full time worker?  Thirdly, is the less favourable treatment on the ground that the worker was a part time worker?  Fourthly, if so, is it justified?

13	Mr Linden submits that the Employment Tribunal failed correctly to analyse the first 3 stages, giving far too much emphasis to the fourth stage ie justification.  He says that a correct analysis would have indicated that Mrs Pipe was dismissed not because she was a part time worker but because the employers had made a commercial decision to have 3 full time employees as accounting assistants.  Thus Mrs Pipe was dismissed on the ground of redundancy.

14	It may be that the Employment Tribunal did not work through the stages with the precision which Mr Linden indicates.  However it is apparent from their Reasons that they were fully cognisant of the treatment given by the employers to Mrs Pipe, and that they were satisfied that by that treatment she was treated less favourably than the comparable full time accounting assistants.

15	When therefore we look to the Reasons for the answer which they found to the question posed by the third stage ie was that less favourable treatment on the ground that she was a part time worker, we find the following statements in paragraph 24 of the Reasons:

“Mrs Pipe was dismissed simply because she would work only 32.5 rather than 37.5 hours”

and a little lower down in the same paragraph:

“They [ie the employers] simply reacted to the fact that Mrs Pipe could only work part time, and triggered her redundancy for that reason.”

16	Clearly therefore, the Employment Tribunal, which had the advantage of hearing and weighing all the evidence, answered that third stage question in the affirmative.  We are unable to see on the facts they found, how that could be a perverse conclusion.  As we noted in paragraph 10 above, Mrs Pipe was told that if she wanted to stay in employment, she would have to become a full time worker, and it is difficult to see how one of the purposes of the Part Time Workers Regulations should not be to endeavour to protect part time workers from such pressure, having regard to the particular circumstances.  

17	Mr Linden’s submission has put considerable emphasis on case law indicating that the Employment Tribunal has to look at the reason for the treatment which operated on the mind of the employer (Nagarajan v London Regional Transport [1999] ICR 877: Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065), but although the Employment Tribunal did not say so in terms, it is reasonably clear that their statements indicated their understanding of what was operating on the mind of the employer.

18	Mr Linden’s argument that she was dismissed because of redundancy isolates only one part of the picture so far as the Part Time Workers Regulations are concerned.  Ascertaining the reason for dismissal for the purposes of unfair dismissal requires a different statutory approach, as we note in paragraph 24 below.

19	It must be right that in interpreting the Regulations so as to give effect to their providing proper protection for part time workers like Mrs Pipe, an Employment Tribunal has to see what happened in its full context.  Thus in this case “the treatment” incorporated the continued pressure on her to work full time, that she would have to work full time if she wished to remain in employment, the selection for redundancy process devised by the employers as it applied to Mrs Pipe (which meant that her dismissal became inevitable), and finally her dismissal.

20	Mr Linden’s submission in respect of the Part Time Workers Regulations also included a challenge to the Employment Tribunal’s conclusions that Mrs Pipe’s treatment was not justified.  However, the Employment Tribunal was well aware of the objective test (see paragraph 19 of the Reasons) and considered carefully how to apply it to the particular facts.  They recognised that it was for the employers to make a commercial decision that they were overstaffed and that 3 accounting assistants were needed instead of 4, but the Employment Tribunal was entitled to look at all the circumstances, including that Mrs Pipe was a part time worker who would be only 5 hours short of full time service, if her offer had been discussed and put into the equation.

21	We are unable to ascertain any error of law in respect of the Employment Tribunal’s finding of a breach of the Part Time Workers Regulations, and accordingly the appeal in that respect is dismissed.

22	Turning now to the appeal in respect of the finding that Mrs Pipe was unfairly dismissed, we can see how an Employment Tribunal might ponder on how the Regulations interrelate with the much more familiar area of unfair dismissal.

23	We accept immediately that if, as Mr Linden submits, the Employment Tribunal’s reasoning was that a breach of the Regulations meant that Mrs Pipe was thereby automatically unfairly dismissed, that would be an error of law which would justify the appeal succeeding (see Heinz (HJ) Co Ltd v Kendrick [2000] ICR 491), and we can see how Mr Linden supports his submission by reference to the choice of words used by the Employment Tribunal in paragraph 28 of the Reasons, especially the sentence which reads:
“The dismissal must, for that reason, amount to an unfair dismissal.”

24	However we are satisfied from a full reading of the Reasons that they did not fall into that error.  They had to ascertain the reason for Mrs Pipe’s dismissal from within the terms of Section 98(2) and found it to be that she was redundant.  They set out the terms of Section 98(4) in paragraph 8 of the Reasons and were thus fully aware of the test to be applied by that provision.  We read the whole of paragraph 28 as their saying that the finding of an act of discrimination in respect of Mrs Pipe was an important factor for them to take into account in respect of Section 98(4).  Having done that, they concluded that there was an unfair dismissal.  That was a conclusion which having regard to all the circumstances cannot be characterised as perverse.

25	Accordingly we also dismiss this appeal in respect of unfair dismissal.  Bearing in mind that it is acknowledged that consideration of the comparatively recently enacted Part Time Workers Regulations has involved some sailing through uncharted waters, both by the Employment Tribunal and ourselves, we have granted Mr Linden leave to appeal to the Court of Appeal, should his clients deem that to be an appropriate course having regard to the circumstances in this particular case.