Part-time employees

March 20, 2008

Since 1 July 2000 and the introduction of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations, part-time workers have had the right not to be treated less favourably than their full-time colleagues as regards the terms of their contract or by being subject to any other detriment by their employer. This could include less-favourable access to benefits or less-favourable contractual terms in relation to pay or annual leave.

A part-time worker can be anyone who works less than the hours that are, through custom and practice, considered by their employer to be full-time.

The regulations are wide ranging in their application. They apply not only to employees but also to workers – that is, those not necessarily employed under a contract of employment but under a contract for services; and there is no qualifying service required to bring a claim under the regulations as there is with other claims, such as unfair dismissal, which generally requires one year’s service in order to bring a claim.

Less favourable treatment can, as stated, include access to the benefits offered to employees, and employers with part-time employees will, to avoid being in breach of the regulations, normally offer them benefits on a pro-rata basis to their full-time colleagues. So, for example, if a full-time employee working 5 days a week is entitled to 25 days’ leave a year, then a part-time employee working 3 days a week would be entitled to 15 days.

Interestingly under the regulations, part-time employees are entitled to be paid overtime at a premium rate only once they have worked the same number of hours a full-time employee would have to work to be paid overtime at that premium rate. For example, if a full-time employee is paid overtime at a premium rate once only they have worked more than 40 hours a week, then the 40-hour rule will also apply to part-time employees. Different rules apply to the treatment of part-time employees who are required to work unpaid overtime.

If a part-time employee feels they have been less favourably treated than a full-time employee, then they may be able to bring a claim under the regulations. To do this, they must identify a comparator, that is, a full-time employee whom they feel is being treated more favourably. That comparator must be employed under the same type of contract and be engaged in the same or broadly similar work. For these purposes, the regulations do not view fixed-term and permanent contracts as different; so fixed-term part-time employees could compare themselves to a permanent full-time employee. If less favourable treatment is established, it is open to the employer to try to objectively justify that treatment.

Justification of the treatment involves the employer’s balancing the needs of the business against the effect on employees and establishing that the latter is a proportionate means of achieving the former, legitimate, aim.

Until recently, the employee bringing the claim had to establish that the sole reason for the less-favourable treatment was their part-time status. However, a recent case from within the education sector has changed that.

In Sharma and others v Manchester City Council, the Employment Appeal Tribunal held that part-time status need not be the only reason for the less-favourable treatment for the claim to be successful.

In this case, part-time lecturers were employed on contracts under which their hours could be varied annually, subject to a guaranteed minimum. Following funding difficulties, their employer made changes to the way in which work was allocated, which resulted in a number of the part-time employees having their hours reduced substantially. This would not have been possible if they had been on full-time contracts, and therefore they argued that their contractual terms were less favourable. The alternative argument was that, it was not because of their part-time status that their hours were reduced, it was because they were employed under a contract that allowed it.

The Employment Appeal Tribunal held that if one of the reasons for the less favourable treatment was the employee’s part-time status, then that was sufficient to trigger the protection of the regulations, and it did not have to be the sole reason for the treatment for the claim to be successful.

This decision brings claims under the regulations in line with other discrimination claims, such as race, sex or disability, which do not require the discriminatory factor to be the main reason for the less favourable treatment.

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