Our latest review of Labour Court decisions looks at the rights of part-time workers and, in particular, anomalies in holiday entitlement calculations and the right to take more responsibility as a condition of service.


Introduction

Atypical workers, i.e. those employees who do not work in typical full time, permanent employment scenarios, have been an integral part of the labour market for some years now and this is reflected in the legal protections afforded such workers across the European Union. Legal-Island has recently reported (Email No.928, 20 October) that the deadline for the transposition of the Temporary Agency Work directive in Ireland is soon due (5 December) but as yet no bill has been published. When this legislation is published and eventually passed, it will enshrine the principle of equal treatment and will thus allow agency workers compare their treatment in relation to terms and conditions of employment with comparable permanent employees of the ‘end user’ employer.

This will repeat the same basic approach already set down in the fixed term work directive, transposed in Ireland by the Protection of Employees (Fixed Term Work) Act, 2003 and the part time work directive, transposed by the Protection of Employees (Part Time Work) Act 2001, subject to an important exception that an agency worker is likely to have to meet an as yet undecided service requirement, unlike fixed-term and part-time employees.

The 2001 Act designed to protect part-time workers in relation to their full time comparators has arguably had less impact than might have been expected, if the level of claims under that Act to Rights Commissioners (RC) attached to the Labour Relations Commission (LRC) is anything to go by. Curiously, neither the 2009 nor the 2010 LRC reports contain a breakdown Act by Act of numbers of complaints. However, the LRC’s 2008 report notes that in that year 59 referrals were made under the part-time legislation compared to 192 under the fixed-term legislation. This trend seems to be replicated in appeals from decisions of the RC service to the Labour Court under both Acts. For example, in 2009, the Labour Court heard seven appeals under the part-time work legislation compared to 24 under the fixed-term heading.

Today’s email, however, considers two such appeals recently heard by the Labour Court under the part-time work legislation. The first of these has important implications for employers who provide additional annual leave entitlements based on length of service criteria and who employ job sharers who work full days when they attend at work, for example, on a week-on, week-off basis.

In the second case, the Court conducted a detailed examination of how broad the term ‘condition’ of employment used in the legislation should be interpreted, in finding that the right of a part-time Fire Officer to act as the Chief Fire Officer at an incident was a condition of employment, even though such a right had no material implications in terms of remuneration. These cases are:

* An Post and Thomas/Riordan
* Dundalk Town Council and Teather


An Post and Thomas/Riordan (PTW/11/3, Determination No. PTD112, 20th September, 2011).

This case concerned an appeal by two job-sharing post office clerks against a RC finding that they had not been discriminated against on grounds of their part-time status, in terms of access to additional annual leave entitlements that were based on length of service. In summary, An Post operated a scheme whereby basic annual leave entitlement was 23 days for full-time employees. One additional day’s leave accrued after five years' service and a further day after ten years.

Both claimants in this case had over ten years' service. Accordingly the respondent provided them with 12.5 days annual leave, exactly half the total of 25 days provided to an equivalent full time worker. This was to reflect the fact that each worked on a week-on week-off basis and thus worked half the number of hours of a full time employee, i.e. 40 hours per fortnight. The RC found that this pro rata approach complied with the 2001 Act and dismissed their claim.

For the purposes of the Labour Court appeal, the respondent continued to argue that such pro rata treatment complied with the Act. However, the claimant’s trade union argued that the service related portion of annual leave was an entitlement accruing on the basis of service only and therefore should not be calculated on a pro rata basis.

The Court noted that Section 10 of the 2001 Act provides that the extent to which a part-time worker is entitled to pro rata treatment with a full time comparator in relation to a particular condition of employment shall be related to the proportion of hours worked. However, this only applies in a case where the amount of the benefit to be derived from the particular condition of employment is dependent on the number of hours worked. In this case, though, it was clear and accepted by the employer that the entitlement to additional days of leave was purely service-related and open to both full-time and part-time employees regardless of the number of hours worked.

Accordingly, the Court determined that Section 10 and the principle of pro rata should not apply in this case, echoing its finding in the previous case of Dunnes Stores Letterkenny and A Group of Workers (PTD 046). Given that the complainants work full 8 hour days when they attend at work as they operate on a week-on, week-off basis, the effect of this decision is to provide them with two extra days annual leave, amounting to a total of 13.5 days – 11.5 days pro rata annual leave and two days service leave.

The Court acknowledged that this finding produced ‘a certain anomalous result’ in that job sharers who work the same number of hours but on the basis of mornings or afternoons only as opposed to week-on, week-off will effectively only have a legal entitlement to 12.5 days annual leave - 11.5 days pro rata annual leave and two days service leave at four hours per day.

Finally, without prejudice to its contention that the claimants had been treated equally, the respondent argued that it had an objective justification for less favourable treatment in that it could not afford to pay the cost associated with this claim.

The Court rejected this contention, noting that the Irish legislature had not provided for a cost argument when framing the 2001 Act, and quoting the decision of the European Court of Justice in the case of Hill and Stapleton v Revenue Commissioners [1998] E.L.R 225 that ‘an employer cannot justify discrimination arising under a job-sharing scheme solely on the grounds that the avoidance of such discrimination would involve increased costs’.


Dundalk Town Council and Teather (PTW/11/4, Determination No. PTD113, 19th September, 2001).

The claimant in this case was a retained (i.e. part-time) firefighter who had attained the grade of Sub Officer at the time of his complaint. Within the fire service, where a full time Sub Officer or more senior Officer is not available at the time of an incident, a practice has developed of designating a full time firefighter who has not yet attained the rank of Sub Officer to ‘act up’ as the Officer-in-Charge, even where a part-time Sub Officer is in attendance.

The claimant alleged that this practice amounts to less favourable treatment on grounds of part-time status and that where a Full Time Sub or more senior Officer is not available, he should assume the role of Officer-in-Charge. An RC found that this complaint was justified and that the respondent was in breach of the 2001 Act. This decision was appealed to the Labour Court.

A number of arguments were raised by the respondent on appeal. The most salient of these were:

1. That full-time firefighters are not comparable full–time employees in that they perform a significantly wider range of duties than the claimant

2. That full-time firefighters are not employed on the same type of contract as the claimant

3. That the designation of a firefighter as Officer-in-Charge relates to a question of status and is not a ‘condition of employment’ within the terms of the legislation

4. That any alleged difference in treatment is objectively justified under the terms of the Act


The Labour Court's Findings

1. Under this heading, the Court summarised that the essential difference in duties concerned the full-time firefighters liability to carry out a range of administrative and ancillary functions whereas a part-time (or retained) firefighter was almost exclusively engaged in fire fighting and associated work.

The Court noted that the facts of this case were strikingly similar to that Matthews v Kent and Midway Town Fire Authority [2006] IRLR 367, where the House of Lords in the UK held that in approaching the question of like work, the similarities of the work performed by claimants and comparators should be concentrated upon rather than the differences. Using this guidance, the Court concluded that the core duties of all firefighters is to fight fires and deal with other emergencies and that full time firefighters perform additional functions precisely because they work full time and must be occupied when there are no fires to be fought.

If these additional functions were to be accepted as preventing a finding of like work, the protection offered by the Act (and the EU directive upon which it is based) would be undermined.

2. Under this heading, the Court noted that the Irish act does not specify that the claimant and his/her comparator must be employed on the same type of contract and that the Court was being asked to import such a requirement into Section 7 (2) by virtue of the wording set out in the directive.

The Court concluded that the reference in the directive to the same type of contract or employment relationship cannot be interpreted as meaning that a contract of employment for full- time work is different to a contract of employment for part-time work, as this would defeat the very purpose of the legislation – to allow a comparison to be made between the two in terms of treatment.

In any case, the Court added that it was not aware of any European case law that allowed a defendant to rely upon a provision in a directive to defeat a claim based on a more favourable provision of national law.

3. Under this heading, the Court noted that the term ‘conditions of employment’ includes conditions in respect of remuneration and pension matters but it found that this definition is clearly not exhaustive and may include other matters.

The Court suggested that there may be cases where a distinction should be drawn between conditions of employment on the one hand and the duties of an employment on the other. However, the uncontested evidence from the claimant in this case was that the right to take charge at incidents is regarded as a benefit of a higher rank rather than a burden.

The Court also noted that although the claimant did not have a written contract of employment, an identical colleague was furnished with a written contract with a term that required taking charge of operations at fires and other incidents. On this basis, the term must be regarded as a condition of employment.

4. Under this heading, the Court noted that the arguments advanced by the respondent related to the availability of the claimant to act as Officer-in-Charge or amounted to general assertions regarding the desirability of full time personnel being assigned to perform command duties.

It concluded that there was no basis upon which a defence of objective justification could succeed in this case.

Accordingly, the decision of the RC was upheld.