PART-TIMERS - 09.02.2006

“But we need a full-timer!”

Case law guidance

In the case of Davis v Shropshire County Council, Mrs Davis (D), worked part-time as a PE teacher. There were three vacancies for head-of-year so she applied. She was unsuccessful. Apparently the head, having discussed the applications with her deputy, decided that it would not be appropriate to interview her simply because she was a part-timer. She argued that, in order to be a head-of-year, teachers would have to work full-time. D did not accept this and went to tribunal. She claimed both indirect sex discrimination and discrimination on the grounds of her being a part-timer. She won both claims. By this time the Council had admitted that they should have at least interviewed her as, had she been a full-timer with her qualifications, then she would have been interviewed. Clearly this was contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations.

The legal stuff

When it came to indirect sex discrimination the tribunal identified that a criterion had been applied - namely that only full-time teachers would be interviewed - and that there were fewer women who could comply with this than there were men. This is because more women are likely to be part-time than men (due to child rearing responsibilities etc.) This criterion was also to her detriment. However, because they were dealing with indirect (rather than direct) discrimination the tribunal then had to ask itself whether this requirement of being full-time could be justified by the employer.

We can justify it. Employers will often argue that certain roles can only be done by a full-time employee. After all, you should know best how many hours are required to do the job. But do the tribunals agree? Their view is that there are many jobs, including those at senior level, which can be done either by one person part-time, or by a job share arrangement.

We know best

In this case, the employer believed that only a full-time person could do the job because they needed to be there when problems arose. Does this sound like a familiar argument? They went further and said it would not be appropriate for colleagues to cover a person’s absence.

OK to a point. To a certain extent the tribunal accepted that the Council’s argument was genuine and “aimed at the pursuit of a legitimate business objective and was unrelated to the sex of the applicant”. But the tribunal didn’t accept that, in order to achieve this objective, it was either necessary or appropriate to have a full-time teacher in this role. As far as the tribunal was concerned it was quite normal, and reasonable, for a busy person such as a teacher to rely on colleagues to deal with matters in their absence, i.e. it wasn’t necessary for the head-of-year to be full-time.

Result. In many respects this is a bad news case for employers. It shows that tribunals are prepared to find that jobs can be done on a part-time basis even if you think otherwise.

Tip. You’ll need to be able to justify your full-time requirement objectively. The smaller your business and the fewer your resources, the less difficult it will be. Consider applications from part-timers on their merits - if they’re rejected for non-discriminatory reasons, you won’t have a problem.