GNER PART-TIME WORKERS WIN APPEAL

june 2005 :: RMTnews 5 GNER part-time workers win appeal RMT launched an appeal after the Newcastle employment tribunal rejected test cases brought three RMT members, Francine James (Customer Service Assistant), Karen Carden (Customer Service Manager) and Deborah Butler (Chef), against GNER under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The regulations aim to remove discrimination against part-time workers. The cases were brought following the failure of GNER to pay part- time workers Attendance Incentive Allowance, which is paid to full-time workers. Regulation five of the Part- Time Workers Directive gives part-time workers the right not to be treated by their employer less favourably than a full-time worker is treated in relation to the terms and conditions of employment. Where a full-time worker receives pay or a particular benefit then the part-time worker is entitled to receive a pro-rata proportion based on the number of hours worked compared to the full-time worker. Following restructuring, GNER agreed to pay full-time workers for the first 35 hours at basic rate and then the additional five contractual hours’ pay at the overtime rate of time and a quarter. The 40 hours would be paid to full-time workers irrespective of whether their roster would actually require the full 40 hours to be worked. Initially, this was called Attendance Incentive Allowance, as part of the requirement for this payment to be made was an attendance element. After complaints were made by the part-time workers that this was unfair, and potentially discriminatory, GNER re-titled the payment an Additional Hours Allowance in an attempt to claim it was an overtime payment. Part-time workers cannot receive an enhanced overtime payment for work done in excess of their contractual hours. An overtime rate need only be paid to part-time workers for the hours worked in excess of a full-time worker. In April 2004, the Newcastle Employment Tribunal rejected RMT claims that part-time workers were receiving less favourable treatment. However, following submissions by Drummond Miller, RMT solicitors for Yorkshire, Lincolnshire and the North East, the Employment Appeal Tribunal agreed that the employment tribunal had failed to apply the correct legal test to the facts. The appeal tribunal rejected the submission by GNER that the additional hours allowance was an overtime payment and, therefore, excluded from the provision of the Part-Time Workers Directive. The employment appeal tribunal therefore ordered that a completely new employment tribunal should hear the whole case again. RMT representative at GNER Alan Andros said that he was “absolutely delighted” that the appeal had allowed members’ claims to be looked at afresh by a new tribunal. “RMT has consistently argued that the payment made by GNER is not an overtime payment and that on-board crew who work part-time should be able to receive a similar pro rata payment,” he said. David Scott of Drummond Miller’s York office said that the Part-Time Workers Directive was a complex piece of legislation and he was pleased that the appeal tribunal had accepted the union’s submission. “However, the case will start afresh before a new tribunal and it will be for them to decide whether the part-time workers have been treated less favourably. “I am, however, certain that if it was not for the determin- ation and resources of the RMT that these cases would not have been brought,” he said. Employment Appeal Tribunal overturns a decision to turn down a claim brought by part-time workers at GNER for equal pay with their full-time counterparts.