Previous case guidance clarifies that whether a comparator is working under the same type of contract is determined by Regulation 2(3) of the Part Time Workers regulations, which sets out four types of contract that are regarded as different to one another. Where a worker and their comparator both fall into one of the categories, they are to be regarded as employed under the same type of contract. The fourth, residual category does not have examples of types of contracts but zero-hours contracts were not a type of contract for these purposes.
Sheffield Hallam University employed Mr Roddis as a part-time associate lecturer on a zero-hours contract. His employment contract included a clause that his hours of work would vary according to the workload of the University’s business and that the University was under no obligation to provide any work or to provide a minimum number of hours in any day or week. It would make offers of work to him at least one month prior to the start of the relevant academic year or semester and under this contract Mr Roddis accepted over 30 offers of work.
He brought an employment tribunal claim for less favourable treatment contrary to the part time workers regulations seeking to compare himself to a permanent full-time lecturer. The tribunal held a preliminary hearing to decide whether Mr Roddis had identified a valid full time comparator to compare himself with as required under the regulations. This was "L", a full-time lecturer working under a permanent contract. The tribunal found that Mr Roddis and L were employed on different types of contract. Mr Roddis' was a zero-hours contract which identified him as an associate lecturer and L’s contract was for permanent employment as an academic lecturer so was not a comparable full time worker for Mr Roddis' claim.
Mr Roddis appealed and the EAT held that Mr Roddis and his comparator were both employed under the" same type of contract". They were both employees employed under a contract of employment. A contract is not of a different type just because the terms and conditions it lays down are different and a zero-hours contract does not, of itself, constitute a ‘type’ of contract for these purposes since this would be self-defeating.
The tribunal had made unchallenged findings of fact that both individuals were employees working for the University under contracts of employment so they were both ‘employees employed under a contract that is not a contract of apprenticeship’. The only possible conclusion resulting from this was that they were employed by the same employer under the same type of contract so the case was sent back to the employment tribunal to determine the remaining issues in the claim.