Part-Time Workers | Public Interest Disclosures

Key points

• With the coming into force on 1 July 2000 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, any part- time worker who is treated less favourably (or believes that he (or she) has been treated less favourably) than a comparable full-time worker employed in the same establishment is entitled to demand and receive from his employer a written statement explaining the reasons for such treatment. If dissatisfied with his employer's explanations, the part- time worker may seek redress from an employment tribunal. Any part- timer who is dismissed, selected for redundancy or subjected to any other detriment for exercising or asserting his statutory rights under the 2000 Regulations, or for bringing proceedings before an employment tribunal, may complain (yet again) to an employment tribunal and will be awarded appropriate compensation.
  
  
• The 2000 Regulations (as amended by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002) implement EC Directive 97/81/EC of 15 December 1997 'concerning the framework agreement on part-time work'.

Rights extended to all workers

• Under the Employment Protection (Part-Time Employees) Regulations 1995 – not to be confused with the Part-time Workers (Prevention of Less Favourable Treatment Regulations 2000 under discussion – part- time employees (as distinct from workers who are not 'employees' in the strict legal sense of the word) have long since enjoyed the same statutory rights as their full-time contemporaries (regardless of the number of hours they work, or are contracted to work, each week). However, the 2000 Regulations add a new dimension to that earlier legislation, by giving all part-time workers (whether 'employees' or otherwise) the right to be treated no less favourably than comparable full-time workers.

Meaning of comparable full-time worker

• For these purposes, a full-time worker is a 'comparable full-time worker ' in relation to a part-time worker if, at the time when the allegedly less favourable treatment occurred, both workers are:
  1. employed by the same employer under the same type of contract (see below);
  2. are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualifications, skills and experience; and
  3. work at the same establishment (or, where there is no full-time worker working or based at the same establishment as the parttime worker, work at or are based at a different establishment within the employer's organisation).

Same type of contract?

• Regulation 2(3) of the 2000 Regulations (as amended) states that the following are not to be regarded as being employed under the same types of contract:
  1. employees employed under a contract of employment, that is not a contract of apprenticeship;
  2. employees employed under a contract of apprenticeship;
  3. workers who are not employees;
  4. any other description of workers that it is reasonable for the employer to treat differently from other workers on the gound that workers of that description have a different type of contract.
  For example, (a) is not the same type of contract as (b), (c) not the same type of contract as (a); and so on. In short, part-time workers who are not 'employees' do not have the right under the 2002 Regulations to compare their terms and conditions of employment with those of their full-time colleagues who are employees.

Less favourable treatment of part-time employees

• Part-time workers must not be treated less favourably than comparable full-time workers solely because they work part-time, unless different treatment is justified on objective grounds. For instance, a part-time employee should be paid the same basic rate of pay as a comparable full-time employee, and a part-time worker who is not an employee, the same as a comparable full-time worker engaged in the same or similar work. But a different hourly rate of pay may be justifiable on grounds of performance, so long as levels of performance are measured by a fair and consistently applied performance appraisal scheme.
  
  
• It is not uncommon for occupational sick pay schemes to provide more generous benefits to full-time workers (eg, full salary or wages for a period of up to three months in every 12-month period). By the same token, it is not unusual for part-time workers to receive no more than their entitlement to statutory sick pay (SSP) when incapacitated for work on health grounds. Such a sweeping differential is no longer acceptable, or justifiable. Indeed, it could give rise to allegations of unlawful sex discrimination, let alone a complaint to an employment tribunal under the 2000 Regulations. That same general prohibition applies to differential treatment in relation to occupational maternity and parental leave schemes, annual holiday entitlements, unpaid career breaks, access to occupational pension schemes, access to opportunities for training and promotion, redundancy selection criteria, etc (ibid. regulation 3).
  
  
• To avoid infringing the rights of part-time workers in their employ, employers will need to scrutinise the relative terms and conditions of their full-time and part-time workers and eliminate any discrepancies or anomalies that cannot be justified on objective grounds. In determining whether a part-time worker has been treated less favourably than a comparable full-time worker, the principle of pro rata temporis must be applied – unless it is inappropriate. It would be inappropriate, for example, to apply that principle to basic rates of pay (see above), access to pension schemes, opportunities for training, transfer or promotion, career break schemes, contractual maternity or parental leave, or redundancy selection criteria.

  Note

  The principle of pro rata temporis means that where a comparable full-time worker receives (or is entitled to receive) pay or any other benefit, a part-time worker is to receive (or be entitled to receive) not less than the proportion of that pay or other benefit that the number of his (or her) weekly hours bears to the number of weekly hours of the comparable full-time worker (ibid. regulation l(l)).

Exception in relation to overtime payments

• The 2000 Regulations acknowledge that part-time workers have no right to premium payments in respect of overtime work until such time as their working hours (including overtime hours) during a particular pay reference period exceed the number of hours ordinarily worked by comparable full-time workers in that same period. But, once that point is reached, premium payments, for hours worked in excess of those full-time hours, must be the same as those paid to full-time workers (ibid. regulation 3(4)).

Written statement of reasons for less favourable treatment

• Any part-time worker, who considers that he (or she) is being treated less favourably than a comparable full-time worker, may ask his employer for a written statement explaining the reasons for that treatment. The employer must provide that statement within 21 days. The written statement is admissible in evidence before an employment tribunal (ibid. regulation 4).
• If an employer deliberately, and without reasonable excuse, fails to provide that written statement, an employment tribunal may draw any inference from that failure that it considers just and equitable (including an inference that the employer has infringed the part-time worker's statutory rights). It may also do so if the written statement is evasive or equivocal (ibid.).

  Note

  There is no need for a separate written statement if a part-time worker (qua employee) who has been dismissed has already requested and received a written statement of reasons for dismissal under section 91 of the Employment Rights Act 1996

Unfair dismissal and detrimental treatment

• A part-time employee (who is not a worker) and is dismissed or selected for redundancy will be treated in law as having been unfairly dismissed if the reason (or, if more than one, the principal reason) for his (or her) dismissal or selection was that he:
  1. had complained to an employment tribunal about an alleged infringement of his rights under the 2000 Regulations;
  2. had asked his employer for a written statement of the reasons for his less favourable treatment;
  3. had given evidence or information in proceedings before an employment tribunal brought by another worker;
  4. had alleged (in good faith) that his employer had infringed the 2000 Regulations;
  5. had refused (or proposed to refuse) to forego a right conferred on him by the 2000 Regulations; or
  6. that his employer believed or suspected that the employee had done (or intended to do) any of the things mentioned in (a) to (e) above
  (ibid. regulation 5(1), (3) and (4)).
  A part-time worker who has been victimised, disciplined or subjected to any other detriment (including dismissal in the case of a worker who is not an employee), on any of the grounds (a) to (f) specified above, has the right to refer the matter to an employment tribunal without having to resign in order to do so (ibid. regulation 5(2), (3) and (4)).

Complaints to employment tribunals, etc

• A part-time employee (regardless of his or her age or length of service at the material time) may complain to an employment tribunal that his employer has infringed his statutory rights under the 2000 Regulations – either by subjecting him to a detriment or some other punishment, or by dismissing him or selecting him for redundancy. Such a complaint must be presented within three months of the alleged detrimental treatment or, if the employee has been dismissed, within three months of the effective date of termination of the employee's contract of employment. A tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
  
  
• If a complaint of unlawful detrimental treatment is upheld, the tribunal will make a declaration to that effect and may order the employer to pay compensation to the worker and/or recommend that the employer take appropriate corrective action (within a specified period) to obviate or reduce the adverse effect on the worker of any matter to which the worker's complaint relates. A failure to take such corrective action will prompt the tribunal either to increase the amount of compensation already awarded to the worker or (if no compensation had previously been awarded) order the employer to pay compensation to the employee. The amount of compensation awarded in such circumstances will be such amount as the tribunal considers just and equitable, and will include compensation for the loss of any benefit which the worker might reasonably be expected to have had but for his employer's infringement of his rights under the 2000 Regulations (or the employer's failure to take the recommended corrective action) (ibid. regulation 6).
  
  
• A worker (qua employee) who has been dismissed (or selected for redundancy), in contravention of the 2000 Regulations, will be treated as having been unfairly dismissed (regardless of his or her age or length of service at the material time) and will be awarded compensation comprising a basic and compensatory award (maximum £7,800 and £53,500, respectively) and, where appropriate, an additional award of compensation of between 26 and 52 weeks' pay.