Part-time workers 




On top of the basic statutory rights available to all workers (see pages 31-33), part-time workers have extra statutory rights under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR). These rights are based on a European Union Directive, the Part-time Workers Directive, in force in the UK from 7 April 2000. 

 


The PTWRs define a part-time worker as any worker whose hours are less than those of a full-time worker. This definition covers job shares, workers on zero hours and “short hours” contracts (see page 42). 


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 holiday (normally pro rata to the hours worked), and the right not to be subjected to any other detriment. 


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 given to other part-time workers who are not “full-time” but 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 is probably the main weakness of the PTWR. Care is needed to choose an appropriate comparator, as this case shows:


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).




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




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:


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 co-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 terms and conditions when working full-time (regulation 3, PTWR). This would apply, for example, for 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). 


Part-time workers 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 the calculation does not mean that the part-time worker gets proportionately less (Steinicke v Bundesanstalt für Arbeit [2003] IRLR 892).

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.




In O’Brien v Ministry of Justice [2017] UKSC 46, Mr O’Brien, a part-time judge who started work in 1975, has claimed pension rights from the start of his employment, comparing himself with a full-time judge. The Supreme Court has referred O’Brien’s case to the European Court of Justice for a ruling as to whether years of service before the deadline date for implementing the EU Directive (7 April 2000) count when calculating benefits for part-time workers. The case has significant potential implications for the pension rights of 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:



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). For the position on part-time working and bank holidays, see page 126, Chapter 4.