![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201905.jpg)
Part-time workers
[ch 2: pages 43-46]On top of the basic statutory rights available to all workers (see pages 31-32), part-time workers have extra rights under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR). They are based on the EU Part-time Workers Directive, in force in the UK from 7 April 2000. The aim of the Directive is to eliminate discrimination against part-time workers and to improve the quality of part-time work.
The PTWRs define a part-time worker as any worker whose hours are less than those of a full-time worker. This definition captures term-time only working, job shares, short-hours contracts and workers on zero hours (Roddis v Sheffield Hallam University [2018] UKEAT/0299/17/DM).
Part-time workers are entitled to be treated no less favourably than a comparable full-time worker under the PTWR. This includes the right to the same contractual benefits such as pay and holidays, including bank holidays (normally pro rata to the hours worked), and the right not to be subjected to any other detriment. An employer has a defence if they can show that less favourable treatment of part-time workers is justified on objective grounds.
The strength and relative simplicity of these rights are illustrated by this new case:
Ms Pinaud, a long-serving cabin crew worker with a “14 days on, 14 days off” shift pattern, was paid 50% of a full-time worker’s salary but was required to be available for work for 130 days a year. This equated to 53.5% of full-time hours, not 50%. Over time, this meant a significant pay difference compared with her full-time comparator. The Court of Appeal confirmed that the arrangement will give rise to a breach of the PTWR unless BA can justify the difference in pay. An employment tribunal has been asked to rule on whether the pay difference can be justified.
British Airways v Pinaud [2018] EWCA Civ 2084
The right is to be treated no less favourably than an equivalent full-time comparator. The PTWR do not protect workers against less favourable treatment than that of other part-time workers who work longer hours than they do (The Advocate General for Scotland v Barton [2015] CSIH 92). Where an entire workforce is “part-time”, working different or variable short-hours shifts, the regulations may be of limited use. Under regulation 2(1) PTWR, a worker will be “full-time” if the employer’s custom and practice is to treat their hours as full-time.
Claimants must be able to point to a real-life full-time comparator, not a hypothetical one. This may be the main weakness of the PTWR. Care is needed to choose an appropriate comparator, as this case shows:
A part-time shorthand teacher at the university’s journalism department claimed she was treated less favourably than her colleague, a full-time teacher in the sociological studies department, who was paid for preparation time, whereas the claimant was not. The EAT ruled that the colleague could not be used as a comparator because, although both lecturers taught students at the university, the tribunal was entitled to take into account “the differences in what they taught, their job specifications and how they taught”.
Carl v University of Sheffield UKEAT/0261/08/CE
If the reason for less favourable treatment is unrelated to the worker being part-time, there is no protection (Gibson v The Scottish Ambulance Service [2004] UKEAT 0052/04/1612). Part-time work need not be the only reason for the different treatment, as long as it is the main reason (Carl v University of Sheffield UKEAT/0261/08/CEA).
As well as being full-time, the comparator must be employed by the same employer, under the same type of contract, doing the same or broadly similar work as the part-time worker. Guidance was given by the Supreme Court in a case brought by the FBU firefighters’ union on behalf of its retained firefighters:
The Supreme Court (SC) said it is wrong to focus on small differences between full-time and part-time roles when, overall, the jobs were substantially the same. A tribunal must always consider the roles as a whole and should only take qualifications, skills and experience into account in so far as they are relevant to the work done at the time. In this case, the SC concluded that the work done by retained and whole-time firefighters was comparable for the purposes of the PTWR.
Matthews and others v Kent and Medway Towns Fire Authority and others [2006] IRLR 367
Tribunals must take a broad approach to the meaning of “type of contract” to ensure that part-time workers do not lose their rights. In particular, a mere difference in “hours” cannot be used as a basis for deciding that two contracts are not of the same “type”. Otherwise the whole purpose of the regulations would be defeated (Roddis v Sheffield Hallam University [2018] UKEAT 0299/17/DM).
To be a valid comparator, the full-time worker must be employed at the same time as the part-time worker (The Advocate General for Scotland v Barton [2015] CSIH 92). They cannot be a former worker.
A worker who cuts their hours from full-time to part-time without breaking employment continuity can compare their part-time terms and conditions with their own terms and conditions while working full-time (regulation 3, PTWR). This would apply, for example, to women who reduce their hours from full to part-time on returning from maternity leave.
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, in Trustees of Uppingham School Retirement Benefits Scheme for Non-Teaching Staff v Shillcock [2002] IRLR 702, the High Court ruled that excluding from the pension scheme workers who earned less than the National Insurance threshold was justified, even though the outcome was to exclude proportionately more part-time workers.
Part-time workers now benefit from pensions auto-enrolment, but the employer is only obliged to enrol them automatically if they earn at least £10,000 a year from one job (see Chapter 4). Separate jobs for more than one employer are not added together (although lower earning part-time workers may be able to join voluntarily).
Pension rights for part-time workers can be calculated pro rata as long as this does not mean that the part-time worker gets proportionately less (Steinicke v Bundesanstalt für Arbeit [2003] IRLR 892).
In November 2018, the ECJ handed down its ruling in the important case of O’Brien v Ministry of Justice [2018] Case C-432/17. Mr O’Brien, a part-time judge, started work in 1975. He claimed pension rights from the start of his employment (that is, before the Part Time Workers Directive came into effect in 2000) comparing himself with a full-time judge. The ECJ ruled that O’Brien was entitled to take into account his pre-2000 service when calculating the amount of his pension. This made a very significant difference to the size of his pension. The ruling is expected to impact on the calculation of pensions for many part-time workers.
Part-time workers who attend 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).
As regards overtime pay, it is not contrary to equal treatment laws to pay enhanced rates only once the part-timer has completed the full-time hours (Stadt Lengerich v Helmig [1995] IRLR 216). However, the ECJ has held that it was unlawful sex discrimination to require a part-time worker to work proportionately more hours than a full-time worker before qualifying for overtime pay:
Edeltraud Elsner-Lakeberg was a part-time teacher. All teachers’ contracts said that they did not get paid for the first three hours of overtime in a month. As a result, Elsner-Lakeberg had to do proportionately more work before being entitled to overtime pay. The ECJ held that this amounted to unlawful discrimination.
Elsner-Lakeberg v Land Nordrhein-Westfalen [2005] IRLR 209
When calculating the redundancy pay of part-time workers, employers are not required to take account of the fact that in earlier years they worked full-time (Barry v Midland Bank [1999] IRLR 581).
A part-time worker who claims to have received less favourable treatment has the right to 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 or unequal pay if it adversely affects more of one sex than the other (see Chapter 7).
A part-time employee with enough service can ask to work flexibly (see Chapter 9: Flexible working).