Protection of Employees (Part-Time Work) Act 2001*
In the case of the National Concert Hall and John O’Reilly PTD 191 the issue of difference in treatment was dealt with before the Labour Court.
The relevant legislation is set out in Section 9 which provides the general right of part-time employees to equal treatment with comparable full-time employees in respect to conditions of employment. The Court pointed out in order to make out a claim under the Act an employee must first identify comparable full-time employee against whom the employee can show there is a difference in treatment.
The employee must also comply with the provisions of Section 7 subsection 3.
The Court pointed out that the combined effect of these provisions is that a comparable full-time employee for the purposes of the Act is a full-time employee employed by the same employer as the complainant. The Court pointed out that in the absence of a comparable employee employed by the same employer a person who comes in the terms of Paragraphs (b) or (c) of Section 7 (2) who is engaged in like work. The Court pointed out that while the term “like work” which is used in Employment Equality Legislation is not used in the Act the Court pointed out that the conditions set out at Section 7 (2) and 7 (3) amount to the same thing.
The employer in this case relied on case on Wippell –v- Peek Cloppenburg 2005 ILR 2001.
In this case the Labour Court referred to the case of Dundalk Town Counsal and David Teather PTD 113 which dealt with the relevant of the Wippell in terms of determining a comparator.
The Court quoted from the decision at length but relevant extracts would be;-
“The claimant in this case cannot decide for himself whether to work or not, also he is employed on the same contractual basis as the comparators except that he is engaged part-time and the comparators are engaged full-time. For these reasons alone, this case can be distinguished from Whippell.”
Furthermore, the reference in the Directive to the “same type of Contract of Employment relationship” cannot be in interpreted as meaning that a Contract of Employment for part-time work is of a different type to a similar contract for full-time work if the Framework Agreement were to be so construed it would defeat the very purpose of the legislation which is to allow for a comparison between those on full-time contracts and those on part-time contracts nor can it be interpreted as meaning that full-time and part-time workers that are engaged in a different type of employment relationship because the employer chooses to treat them differently. Rather, the reference in the Frame Work Agreement must relate to the difference between, for example, Contract of Service and a Contract for Services, or a Contract for Apprenticeship.
The Court also quoted a case Mc Ardle and the State Laboratory FTD 063 where the Labour Court considered arguments on the nominated comparator and held in that case;-
“It is for the claimant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the claimant and the comparator are engaged in like work”
That case was appealed on a point of law and Laffoy J in that case in the High Court reported 18 ELR 165 upheld the fillings of the Labour Court except for one point which was not relevant. In that case it was stated;-
“I can see no error of law in the conclusion of the Labour Court that an established Civil Servant in the State Laboratory, who is engaged in like work with the defendant was “comparable permanent employee” for the purpose of Sections 6 because, on the basis of unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in Section 5 where a comparable permanent employee vis/a/vie the defendant as a fixed term employee. The Act expressly provides that the term “employee” include an established Civil Servant”
This case is helpful in resetting out the law by the Labour Court.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees as a proportion or percentage of any award or settlement.