Mr C McEachran v - QC The Scottish Ministers — 2018

The claim was brought under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and focused on whether the claimant could compare himself with Lord McGhie and John Wright in relation to pension entitlement. The tribunal identified the preliminary issue as whether the claimant and the proposed comparators were employed by the same employer under the same type of contract, before any consideration of whether they did the same or broadly similar work.

The tribunal accepted, following O’Brien, that the claimant and the comparators were workers for the purposes of the Regulations. It then considered the totality of the relationship rather than any single factor. Although the respondents did not control the comparators’ remuneration or pension, which were reserved matters, the tribunal attached significant weight to the Scottish Government Justice Department’s role in the administration of the comparators’ service, including office accommodation, IT, pay mechanics, leave, travel and subsistence, recruitment, and assistance with staff issues.

On that basis, the tribunal held that the respondents were the comparators’ employer for the purposes of regulation 2(4)(a)(i). It also held that the claimant and the comparators were employed under the same type of contract because each fell within regulation 2(3)(c) as a worker who was not an employee. Applying Matthews and Roddis, the tribunal said that differences in remuneration or the fact that the respondents did not set pay or pension were not enough to make the contracts different types.

The judgment concluded by directing that the case should proceed to a further preliminary hearing on whether the claimant and the comparators were engaged in the same or broadly similar work, having regard where relevant to qualifications, skill and experience. No monetary remedy was awarded or determined in this decision.