13 March 2007

CIRCULAR EMP/3/07

Dear Sir/Madam

RETAINED FIREFIGHTERS AND THE PART-TIME WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS: EMPLOYMENT TRIBUNAL 2007

1. I write further to Employers circular EMP/2/07 dated 26 February 2007 which gave details of the position at that time and advised that these cases would return to the Employment Tribunal on 7-9 March 2007.

Background

2. This was the first case to consider the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”). Retained Duty System firefighters were selected from two fire authorities (Kent & Medway Towns and Royal Berkshire) who, supported by the FBU, argued that the Employment Tribunal had wrongly decided that:

• Whole time and retained fire-fighters were employed under different types of employment contract;
• Whole time and retained firefighters were not engaged to carry out the same or broadly similar work.

3. Authorities will recall that in a majority decision the House of Lords found for the Retained Duty System firefighters on the first point. Further, on the second point, the majority of the House of Lords allowed the Retained Duty System firefighter appeal. However, rather than make a ruling on the second issue, the House of Lords decided that the claim should return to the Employment Tribunal to further consider the issues, based on guidance given by the House of Lords.

Outcome of the Employment Tribunal

4. The London South Employment Tribunal met last week to reconsider its decision. The case was not concluded. The Tribunal granted a review application by the Claimants concerning certain findings of fact. These findings revolved around statutory and community fire safety activities.

5. In granting this review application the Tribunal has allowed all parties to submit further evidence about the degree to which whole time and firefighters on the retained duty system carried out these activities, when the claims were originally brought in December 2000.

6. The Tribunal has set a timetable leading to a further five day hearing starting on the 12 November 2007 at which it will consider:

• The further evidence referred to in paragraph 5 above;
• Legal arguments on whether retained duty system and whole time firefighters are engaged on the same or broadly similar work under the Part Time Workers Regulations;
• Legal arguments on whether firefighters on the retained duty system are treated less favourably than whole timers under the Part Time Workers Regulations;
• Whether any alleged less favourably treatment is objectively justifiable under the Part Time Workers Regulations.

7. The result of the action in paragraph 6 above will inevitably mean a delay and further legal costs as part of the cost-sharing agreement before the cases can be resolved.

8. Authorities will be kept informed of any further developments although it is unlikely that a decision will be reached by the Tribunal until early in 2008.

Yours faithfully,

Jacky Teasell
Negotiating Officer

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