Part-time workers

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) define a part-time worker as any worker whose hours are less than those of a full-time worker. This definition could even cover workers on zero hours contracts who have no fixed hours at all (see page 41).

Anyone defined as a part-time worker has the right to be treated no less favourably than a comparable full-time worker. This includes the right to the same contractual benefits, such as pay and holiday (although these will normally be made pro rata to the hours worked), and the right not to be subjected to any other detriment. If the reason for the less favourable treatment is unrelated to the worker being part-time, there is no protection under the regulations (Gibson v The Scottish Ambulance Service EAT/0052/04).

There is a defence to a claim under the PTWR if an employer can show that its less favourable treatment of part-time workers is justified on objective grounds.

When considering claims of less favourable treatment, tribunals consider the following questions:

• What is the treatment complained of?

• Is it less favourable than that of a full-time worker?

• Is the treatment less favourable because the worker is part-time?

• Is there any objective justification for the less favourable treatment?

A claim under the PTWR is based on comparison with an equivalent full-time worker, known as the comparator.

As well as being full-time, the comparator must be employed under the same type of contract and be engaged in the same or broadly similar work as the part-time worker who is bringing the claim. Guidance was given by the House of Lords (now Supreme Court) in early 2006, in a case brought by the FBU firefighters’ union on behalf of its retained firefighters:

Part-time workers have the right to the same pension arrangements as full-time workers. Excluding part-time workers from joining an occupational pension scheme is unlawful (Preston v Wolverhampton Healthcare NHS Trust [2004] IRLR 96). However, the ruling in Preston makes it clear that employers are allowed to require part-time workers to take steps to exercise their option to join the pension scheme, even though entry may be automatic for full-time workers. Trade union representatives need to be aware of this ruling, and to ensure that part-time workers are told what their rights are and how to exercise them.

The European Court of Justice (ECJ) in Steinicke v Bundesanstalt für Arbeit ([2003] IRLR 892), held that European law does not prevent pension rights for part-time workers being calculated pro rata, as long as the way that the calculation is done does not mean that the part-time worker gets proportionately less. However, in Trustees of Uppingham School Retirement Benefits Scheme for Non-Teaching Staff v Shillcock ([2002] IRLR 702), the High Court ruled that excluding workers earning less than the National Insurance threshold was justified, even though the outcome was to exclude proportionately more part-time workers.

Part-time workers attending union training should get paid for all the hours on the course (see Chapter 5: Right to time off). However, part-time workers are not necessarily entitled to pay if the course occurs on their days off, that is on days when they would not have been at work (Calder v Secretary of State for Work and Pensions UKEAT/0512/08/LA).

In relation to overtime pay, it is not contrary to equal treatment laws to pay enhanced rates only when the part-timer has completed the full-time hours (Stadt Lengerich v Helmig [1995] IRLR 216).

Nor are part-time workers entitled to have account taken of previous years they had worked full-time when their redundancy pay is calculated (Barry v Midland Bank [1999] IRLR 581). However, in one case where a part-time worker had to work proportionately more hours than a full-time worker before qualifying for overtime pay (the Elsner-Lakeberg case, see below), the ECJ held that this amounted to sex discrimination:

A part-time worker who claims to have received less favourable treatment has the right to ask the employer for a written statement of the reasons for the difference in treatment, and may take a claim of less favourable treatment to an employment tribunal. Less favourable treatment of part-time workers can also amount to indirect sex discrimination (see Chapter 6), or unequal pay if it adversely affects more of one sex than the other.

A part-time worker may also be able to take advantage of the right to ask to work flexibly (see Chapter 8: Flexible working).