Protecting part-timers

The Part-Time Employees Regulations could be in force by June. They are still in the consultation stage but on past experience consultation rarely leads to change. A part-time employee is defined by reference to a full-time employee.

It will be unlawful for a part-time employee to be treated less favourably than a full-time employee simply because he works part-time. The only exception will be where the difference in treatment can be justified on “objective grounds”. Part-time employees should not be treated detrimentally, whether “by act or omission.” Treatment

The Regulations compare the treatment of a part-timer to that of a full-time employee in a comparable job, doing the same or broadly similar work, and who has broadly similar qualifications, skills and experience. The full-timer used as a reference should work at the same establishment, but where there is no full-time employee at the relevant work place, then someone at a different establishment could be used. The need for a comparison is similar to that required by discrimination and equal-pay law.

An employee may request a written statement from his employer if he believes that he has been treated less favourably because he is part time and the statement can be used at a tribunal. The Regulations will have a direct effect on pay. Part-time employees must not receive a lower basic-rate than comparable full-time employees. There is an exception to the rule if the lower rate is “objectively justifiable”. As an example, the DTI’s consultation paper cites a performance-related pay scheme measured by a fair and consistent appraisal system.

Once part-timers have worked more than the normal full-time hours, they become entitled to receive the same hourly over-time rate as comparable full-time employees. There will not be any such increase until they have reached their normal level of hours worked.

Generally, part-time employees must have the same benefits, pro-rata, as full-time employees and should not be treated less favourably for sick pay or maternity pay, in the length of service required to qualify for payment, or the duration of payment. Employers must not discriminate between full-time and part-time employees over access to pension schemes, and part-time staff should have their benefits from the scheme calculated pro-rata to full-time employees. In some schemes, the rules may need to be revised to ensure compliance.

Employers must not exclude part-timers from training schemes, simply because they work part-time.

Part-time staff are entitled to the minimum statutory annual, maternity and parental leave and time off for dependants.

Where statutory rights have been improved under the terms of a contract, part-time employees should have the same rights, pro-rata, as their full-time colleagues.

The contractual holiday entitlement for part-time staff should be pro-rata to that of full-time employees. Similarly, contractual maternity and parental leave, if there is such, should be available to both part-time and full-time employees.

Career break schemes, are also included in the Regulations and should be available to part-time staff, unless their exclusion can be objectively justified. The criteria used for redundancy must be objective and part- time employees must not be treated less favourably.

There are several circumstances where an employee’s dismissal will be automatically treated as unfair, and these apply irrespective of the length of service.

This will happen where an employee was dismissed for any of the following reasons: they brought proceedings against the employer under the Regulations; asked for a written statement of reasons for different treatment; gave evidence or information in connection with proceedings being brought against the employer; acted under the Regulations in relation to the employer, in any other way or they alleged that the employer had infringed the Regulations, or the employee refused to forgo a right. Unfair dismissal could also apply where the employer believed or suspected that the employee intended to take such action.

Remedies

An employee can bring a complaint to an employment tribunal within three months alleging that there has been less favourable treatment. Where claims are made beyond the time limit, the tribunal will have a wider discretion than it does in cases of unfair dismissal, to allow the claim to proceed where it is “just and equitable” to do so.

An employment tribunal can order employers to pay compensation, and can also recommend a course of action. Failure to follow this can increase the compensation. The amount of compensation will take account of the infringement itself and any loss suffered as a result. This includes expenses reasonably incurred and any benefit that has been lost because of the infringement. There is no limit on the loss, but unlike discrimination claims, an award will not include compensation for injury to feelings.

Beware

In the past, part-timers have successfully brought claims on the basis of indirect sex-discrimination. Statistically, more women than men are likely to be part timers and so any condition or requirement with which they cannot comply is likely to have a disproportionally adverse effect.

The provision of regulations specifically relating to part-timers may prove attractive to potential litigants. The substance of the proposed regulations may not be that radical, given the case law that has arisen from indirect discrimination claims. Nonetheless, this now provides a direct freestanding ability to bring a claim for any loss suffered, without the emotive label of discrimination. These regulations are more straightforward and likely to lead to a greater awareness amongst part-timers of their rights.

Jonathan Exten-Wright is a Partner in the Employment Department of Dibb Lupton Alsop.