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Part-time workers
[ch 2: pages 46-48]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 covers job shares and could even cover workers on zero hours contracts (see page 40).
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 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 [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 cause (Carl v University of Sheffield UKEAT/0261/08/CEA).
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 should 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.
Claimants must be able to point to a real full-time comparator, not a hypothetical one.
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. Her colleague 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
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 a case brought by the FBU firefighters’ union on behalf of its retained firefighters:
The Lords said it was wrong to focus on small differences between the full-time and part-time roles when, overall, the jobs were substantially the same. A tribunal must always look at the roles as a whole, and should also only take qualifications, skills and experience into account in so far as they are relevant to the work undertaken at the time. In that case, the Lords held that the work done by retained and whole-time firefighters is comparable for the purposes of the PTWR.
Matthews and others v Kent and Medway Towns Fire Authority and others [2006] IRLR 367
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 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 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).
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
Part-time workers are not 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).
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 or unequal pay if it adversely affects more of one sex than the other (see Chapter 6).
A part-time employee with enough service can make a request to work flexibly (see Chapter 8: Flexible working).