THE MARSHALL & GALPIN GUIDE TO PART TIME WORKING

A Labour Force Survey (June-August 2000) estimated that 25% of the UK workforce are employed on a part-time basis. As is typical of recent rapid changes in employment law, European law has brought about an end to vastly different treatment accorded to full time as compared to part time workers. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 came into force 1^st July 2000 so as to implement the European Directive on Part-Time Workers (EC 97/81).

WHO IS A PART-TIME WORKER?

They are defined as an individuals who is paid wholly or partly by reference to the time he/she works and, having regard to the custom and practice of the employer in relation to worker’s employed under the same type of contract, is not identifiable as a full-time worker. Essentially, therefore, someone who is not a full-time worker. The Regulations, however, apply to workers and not just employees. A worker is defined as someone who personally performs work for the employer under a contract, provided the employer is not the workers’ own client or customer.

WHAT RIGHTS & PROTECTION DO PART-TIME WORKERS HAVE?

The core right is for a part-time worker not to be treated any less favourably than a comparable full-time worker as regards the terms of his/her contract of employment, or by being subjected to any other detriment by the employer. Consequently a part-time worker is entitled to receive the same benefits as a full-time worker to include:

•   rate of pay;
•   rate of overtime pay, once they have worked the same number of hours as a comparable full-time worker
•   promotion and training opportunities
•   entitlements to annual leave, maternity/paternity leave, contractual sick pay and maternity pay and access to
     occupational pension schemes
•   health insurance and any other subsidised benefits e.g. staff discounts, share options, profit sharing etc.
•   equality in relation to selection for redundancy, unless the different treatment is justified

Where appropriate the above rights are subject to the pro-rata principle. For benefits that are not amenable to being subjected to the pro-rata principle e.g. health insurance, company cars etc., the employer may have to provide the financial equivalent instead.

NB the right to overtime pay received specific mention in the Regulations. Although the part-time worker must receive the same rate of overtime pay, this does not become effective until he/she has worked the same number of hours that a full time worker would need to work in order to be come entitled.

HOW DO YOU ASSESS AN INFRINGEMENT OF RIGHTS?

As with the laws on equal pay, the Regulations require a comparison between the treatment received by the part-time worker and that of another worker. For this purpose the part-time worker will need to find the appropriate comparator.

CHOOSING THE COMPARATOR

A full-time worker may be used as a comparator by a part-time worker if the full-time worker:

•   is employed by the same employer (not any associated employers)
•   under the same type of contract
•   engaged in the same or broadly similar work, having regard to whether they have a similar level of skills,
     qualifications and experience
•   works/based at the same establishment or if there are no full-time workers at that establishment fulfilling the
     criteria, at another establishment where the full-time worker is comparable

NB a full-time worker becoming part-time is able to use him/herself as a comparator as long as the gap between the two positions is no more than 12 months. Therefore women returning from maternity leave to a part-time position may refer to their own previous treatment prior to taking maternity leave.

The Regulations also draw distinctions between various types of contracts. Therefore there will be differences between a fixed-term contract, normal contracts terminable on notice and contracts of apprenticeship. A part-time worker must, therefore, find a comparator who has the same type of contract as him/herself.

ENFORCEMENT / THE RIGHT TO A WRITTEN STATEMENT

By Regulation 6, any part-time worker who believes he/she may have been treated in a manner infringing the Regulations, may ask for a written statement giving reasons for the detrimental treatment. This must be supplied within 21 days of the request.

A worker may bring his/her claim to an Employment Tribunal within 3 months of any infringement though the tribunals do have a wide discretion to allow claims outside of this period in the interests of justice. The burden is placed on the employer to justify the unequal treatment.

Where an employee is dismissed by reason of bringing a claim for infringements of the Regulations, or has given assistance to a fellow worker bringing such a claim, this dismissal shall be automatically unfair. There is no requirement for employees in these situations having to satisfy a 1 year qualification period. There is no automatic unfair dismissal for a worker in such circumstances though the worker’s detrimental treatment may be unlawful.

OTHER REMEDIES

There are more costly and laborious methods for part-time workers to claim redress for discrimination, namely the Sex Discrimination Act 1975, the Equal Pay Act 1970 and the European Courts. The Regulations are a far easier route for redress and are more likely to be utilised henceforth.

SEX DISCRIMINATION ACT 1975

Most claims made under this legislation by part-time workers involve allegations of indirect discrimination. There are 4 elements to the definition of what qualifies as such discrimination:

•   the condition imposed must apply equally to both sexes
•   the proportion of the complainant’s sex who may comply with the condition is far smaller than that for the opposite
     sex
•   detriment is caused to the complainant due to the inability to comply with the condition
•   there is no justification for the condition

EQUAL PAY ACT 1970

Under this act an injured party may bring a claim that he/she have been treated less favourably than a comparable person of the opposite sex in relation to the terms and conditions relating to pay. In order to succeed it must be shown by the complainant that in comparison to the chosen comparator, he/she is:

•   employed on like work; or
•   employed on work rated as equivalent; or
•   employed on work of equal value.

Success in establishing any one of the above will give rise to a presumption of inequality of salary due to sex. It is then for the employer to show that the difference is justified.

OBJECTIVE JUSTIFICATION

This possible defence to claims under the Sex Discrimination and Equal Pay legislation has been adopted by the Part-time Workers Regulations. Briefly, the employer may be able to show by reference to objective, gender neutral factors, that the discrimination is warranted. Such factors may include market forces, skills shortages, costs and resources and the nature of an individual’s position.