Part-time workers are protected by the Part-Time Workers (Protection from less favourable Treatment) Regulations 2000 (the Regulations). These rules protect part-time workers from less favourable treatment than their full-time colleagues, unless such treatment can be justified on objective grounds.
It should be noted that the Regulations have wide applicability as they relate to workers rather than just employees.
The Regulations define both full-time and part-time workers.
In order to bring a claim under the Part-Time Workers Regulations, the worker must identify a comparator. This must be someone:
Unlike some discrimination legislation, there is no scope to base a claim on a hypothetical comparator. However, if an actual comparator has been identified, it is open to a tribunal to also consider hypothetical comparators in addressing the question as to why the employer treated the worker less favourably.
For the purpose of identifying a comparator, the Regulations set out four categories of worker:
In considering whether a part timer is employed on the same or broadly similar work, case law has held that it is a matter of looking at whether the main duties and responsibilities between the two groups were the same. “The question then is whether any differences are of such importance as to prevent their work overall from being regarded the same or broadly similar.”
The emphasis should be on the similarities between the jobs and their importance to the employer. Where there are differences, the question is whether they are significant enough to prevent the work overall being considered the same or broadly similar.
Following a switch from a full-time to a part-time contract, the worker can compare their new terms and conditions with those they were engaged on before the change. A claim can be brought if the worker can point to less favourable treatment. Strictly speaking, the comparator in these circumstances is a hypothetical one and this is an exception to the general rule that there cannot be a hypothetical comparator.
A part-time worker has the right not to be treated less favourably than a full-time comparator:
This applies where the difference of treatment is because of the worker’s status as a part-time worker and the differences cannot be objectively justified. For instance, the failure to promote a part-time worker because of concerns about performance would be defendable if it can be clearly demonstrated that the failure to promote was not because of the worker’s part-time status, but rather their performance in the job.
There are four questions to ask in considering whether there has been less favourable treatment:
These concepts are taken from the Equality Act 2010. The tribunal is required to ask itself whether a reasonable person would take the view that the worker had been disadvantaged in some way. Therefore, less favourable treatment or detriment cannot be 'off-set' or 'cancelled-out' by more favourable treatment of a different kind. Unlike the Fixed-Term Worker Regulations, there is no scope for the tribunal to look at the contract as a whole; it must be considered on a 'term-by-term' basis.
The less favourable treatment must be because of the worker’s part-time status. The burden of proof is on the employer to demonstrate that the less favourable treatment was for a reason unconnected with part-time status.
Regulation 5 states that, in determining whether a worker has been unfavourably treated, the pro rata principle should apply unless it is inappropriate in the circumstances. For example, if a full-time worker working a five day week receives 25 days’ annual holiday a part-time worker working a three day week should receive 15 days’ holiday.
Not all benefits are easily capable of being pro-rated, in which case, the employer will need to find a suitable alternative. For example, if company cars are provided to full-time employees, a part-timer might be given a less expensive car or a cash allowance in lieu.
Regulation 5 lays down that a part-time worker will only qualify for a premium over-time pay rate once the worker has worked the same number of hours that a full-time worker is required to work to qualify for a premium rate over-time payment. For example, if full-time workers work a 40 hour week before receiving premium rate overtime, then where a part-time worker who usually works a 20 hour week works a 40 hour week, they will receive their normal pay for the additional 20 hours but won’t receive the premium over-time payment until they have completed 40 hours.
Ordinary contractual holiday will be pro-rated as shown above. However, bank or public holidays can be more problematic. Part-time workers who do not work on Mondays will miss several public holidays and may feel they are suffering a detriment. However, historically, many employers have taken the view that if a worker does not ordinarily work on a bank holiday, they are not entitled to paid time off. There are two approaches an organisation can take:
If an employer chooses the latter approach, they may be able to defend it on the basis:
There have been no reported cases on this justification defence. However, a recent case on the 'reason' defence (McMenemy v Capita Business Services (2007)) supported the argument that the reason for not giving the holiday was merely because the employee was not working on the day the holiday fell, and not because he was a part-time worker.
On the facts of this case, all employees were required to work on a flexible roster and could work any day of the week, including Mondays. Therefore, some full-time workers might not work on a bank holiday if they were not rostered to do so, and would lose the holiday accordingly. The tribunal accepted that part-time workers would be disproportionately affected by this approach, but, as the Regulations do not include indirect discrimination provisions, the claim failed. Employers who operate on a more conventional Monday to Friday working week may find it less easy to avoid findings of less favourable treatment as they will not be able to point to full-time workers who are also disadvantaged by the policy. These employers will have to look to an objective justification defence (see below).
An employer may be able to defend less favourable treatment on the grounds that it can be objectively justified (Regulation 5). To do so the employer must show:
An objective balance must be struck between the discriminatory effects of the provision and the reasonable needs of the employer, (the principle of proportionality). The employer does not have to show that the measure in question is the only way of achieving the desired objective but, if the part-time worker can point to another, non-discriminatory way in which the employer could have achieved the same aim, there is risk that a tribunal will find that the defence of objective justification has not been made out.
Factors which are commonly relied on by employers to justify a difference in treatment between full-time and part-time workers include: skills, qualifications, experience, market forces and geographical differences. Tribunals are increasingly unwilling to accept arguments based on cost and resources and it is not enough for employers to make generalisations to the effect that part-time workers are less committed or take longer than full-time workers to acquire the necessary skills and experience.
Guidance (now archived) from BIS usefully identified a number of areas in which employers must ensure equality of treatment for part-time workers, on a pro-rata basis where appropriate:
Abbreviated government guidance on part-time workers' rights is available online.
There is no right to request part-time working arrangements under the Regulations. However, there is the separate statutory right to request flexible working for all employees with at least 26 weeks continuous service [Flexible working guide].
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