PART-TIME WORKING - 16.03.2018

What rights do part-time workers really have?

LESS FAVOURABLE TREATMENT

Statistics released by the Office for National Statistics covering September to November 2017 show that, out of a total UK workforce of 32.21 million workers, 8.55 million are now part time, with nearly three quarters of these being women. Regulation 5 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTW) provides that part-time workers, whether they’re female or male, have the right not to be treated less favourably than comparable full-time workers, on the ground that they’re part time, as regards the terms of their contract or by being subjected to any other detriment by their employer. However, it may be possible to justify less favourable treatment on objective grounds.

Pro advice 1. The PTW apply not only to employees but also to the wider category of “worker” and there’s no qualifying period of employment for bringing a claim. A “worker” has the same definition as in the Working Time Regulations 1998 .

Pro advice 2. The PTW also give a right to full-time workers who become part time, or who return part time after up to twelve months’ absence, to be treated not less favourably than they were before going part time. This prevents you from providing less favourable employment terms on a move from full-time to part-time work (see Follow up ).

Pro advice 3. The PTW don’t give full-time workers the right to switch to part-time working or vice versa. If you’ve unjustifiably refused to allow a woman to switch to part-time work to accommodate her childcare responsibilities, she would have to make an indirect sex discrimination claim.

Pro advice 4. Be aware that it is automatically unfair to dismiss an employee for a reason relating to their having asserted their rights under the PTW . However, unfair dismissal protection only extends to employees and not workers. That said, a worker has the right not to be subjected to a detriment on this ground and this would include termination of their contract.

DEFINITIONS

The PTW define a “full-time worker” as one who’s paid wholly or in part by reference to the time they work and who’s identifiable as a full-time worker in the business, having regard to custom and practice in relation to workers employed under the same type of contract. Conversely, a “part-time worker” is one who’s not identifiable as a full-time worker in the same business.

Pro advice. A full-time worker might work 35 hours per week in one business but 40 hours in another business as there’s no specific number of hours that makes someone full or part time. A part-time worker works fewer than the normal full-time hours.

IDENTIFYING A COMPARATOR

To establish less favourable treatment under the PTW , a part-time worker must identify an actual full-time worker as a comparator. The comparator must: (a) work for the same employer under the same type of contract; (b) be engaged in the same or broadly similar work, having regard to whether they have a similar level of qualifications, skill and experience; and (c) work or be based at the same establishment or, where there’s no full-time worker at that establishment who satisfies the above requirements, work or be based at a different establishment and satisfy these requirements.

Pro advice. The comparator can’t be hypothetical.

JUSTIFICATION DEFENCE

You have a defence to a claim under the PTW if you can show that your less favourable treatment of the part-time worker is justified on objective grounds. Less favourable treatment will only be justified if you can show that it’s to achieve a legitimate objective, e.g. a genuine business objective, and it’s a necessary and appropriate way to achieve it. In practice, the circumstances when you’ll be able to invoke this defence are likely to be limited.

COMPLIANCE IN PRACTICE

In determining whether a worker has been treated less favourably, the “pro rata principle” must be applied unless it’s inappropriate. This principle states that, where a comparable full-time worker receives pay or any other benefit, a part-time worker must receive not less than the proportion of that pay or benefit that the number of their weekly hours bears to the number of weekly hours of the full-time comparator. Applying this in practice:

• Pay and overtime. Part-time workers must be given a pro rata entitlement to pay, bonuses and commission, unless the difference in pay is due to some other factor than the worker’s part-time status.

Pro advice. Overtime is treated differently as you can require all workers to work the same number of hours before they become eligible for enhanced overtime pay. This means part-time workers may only receive the same hourly overtime rate once they’ve worked more than the normal full-time weekly hours.

• C ontractual sick and maternity pay. You must not treat a part-time worker less favourably when it comes to calculating contractual sick, maternity and other family-friendly pay, in relation to the rate of pay, the length of service required to qualify for payment and the length of time for which the payment is received.
• Other benefits. Where possible, any other benefits that are provided to full-time workers should be provided to part-time workers on a pro rata basis, e.g. private health insurance, life assurance, pension scheme contributions, company car and gym membership.

Pro advice. Some benefits, e.g. private health insurance and company cars, can’t easily be apportioned pro rata. You must then decide whether to withhold the benefit from the part-time worker if the cost of extending it would be unduly prohibitive or disproportionate. If you do so, you must still be able to demonstrate that your decision is justified. Better solutions include: (a) calculating the financial value of the benefit to the full-time worker and then paying a pro rata cash equivalent in lieu to the part-time worker; (b) offering a less expensive version of the same benefit, e.g. a cheaper company car; (c)  asking the part-time worker to make a contribution to the extra cost of providing the benefit; or (d)  allowing full access to the benefit to all workers.

• Career development and training. You must provide part-time workers with the equal opportunity to seek promotion, whether the post is full time or part time, and you must also not exclude them from training opportunities.

Pro advice. Audit staff benefits and policies, identify any contractual terms or practices which treat part-time workers less favourably than comparable full-time workers and take steps to rectify the difference in treatment, applying the pro rata principle where appropriate.

HOLIDAYS

Part-time workers should be given pro rata entitlement to annual leave, whether that’s the statutory minimum leave entitlement or if you have a more generous contractual leave entitlement. In respect of paid bank holidays, where workers work fixed days each week, a policy of granting the day off to those whose day of work coincides with the bank holiday will put some part-time workers at a disadvantage (mainly those who don’t work on Mondays), whilst others will be treated more favourably (those who do work Mondays). This is because most bank holidays fall on a Monday. The simplest and legally safest way to achieve equality in this situation is to provide all part-time workers with a pro rata number of bank holidays according to the number of days/hours they work (see Follow up ).

Example. Omar works three days per week, Wednesday to Friday. On a pro rata basis, he’s entitled to 4.8 bank holidays (3/5th of eight bank holidays), which can be rounded up to five days. In 2018 he will benefit from just two bank holidays on Good Friday and Boxing Day, as all the other bank holidays fall on a Monday or Tuesday. An additional three days should therefore be added to his standard annual leave entitlement to ensure he receives his pro rata bank holiday entitlement of five days.

Pro advice. Ensure your part-time workers are informed about their annual leave entitlement at the start of each holiday year, taking into account how the bank holidays fall in that particular year.

Letter confirming a reduction in hours request

Part-time employee clauses