Part-time workers' rights: A burning inequality?

It would have been difficult to avoid the recent news coverage of the House of Lords' decision in Matthews & Others v Kent & Medway Towns & Fire Authority and Others. The reports in the media of the case, which concerned the rights of retained part-time firefighters to the same pension and sick-pay benefits as full-timers, have claimed that the implications of the decision are momentous. However, this is unlikely to be so.

Although the case is undoubtedly of interest because it is the first to be heard by the House of Lords under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the effects of the ruling have been exaggerated.

Assessing less-favourable treatment

One thing that HR professionals can take away from this case, however, is the detailed guidance that the House of Lords has given when considering whether part-timers do the same or similar work to that of a full-time employee.

Broadly speaking, before a part-time employee can bring a claim for less-favourable treatment under the Regulations, they must first be able to identify a comparable full-time worker. To do this, they must show that both they and the full-timer are engaged by the same employer under the same type of contract. In addition, both employees must be engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience.

The guidance indicates that employers must take the following approach when assessing whether work is the same or broadly similar.

This guidance should enable businesses employing part-timers to determine whether there are any qualifying full-time comparators in their organisations and whether there is less-favourable treatment. When reviewing contracts and policies, you should pay particular attention to the differences in treatment in the provision of any benefits to employees. Employers should ensure that, where appropriate, such benefits are pro-rated. If not, any differences between them should be objectively justified, ie you must show that they are necessary and appropriate to achieve a legitimate business objective.

While the guidance issued by the House of Lords in Matthews will inevitably mean it is easier for part-timers to find a full-time comparator and bring claims under the Regulations, it is unlikely that we will see the floodgates open to part-time worker claims, as each claim will still turn on its own facts.

TUPE considerations

The Regulations are only one potential route for part-timers seeking parity over access to pension benefits. Prior to these Regulations, in the early 1990s, there was significant litigation (known as the Preston litigation) founded in the indirect sex discrimination arena. Mrs Preston was successful and her case prompted a further 60,000 cases, some of which are still being heard.

The House of Lords also recently handed down its decision in Powerhouse Retail Limited & Others v Burroughs & Others on the question of the time limits for bringing a pension-related equal pay claim in a TUPE transfer context. Under TUPE, occupational pension rights do not generally transfer automatically to the transferee. As a result, rights to an equal pension for part-timers, implied by the equality clause under the EPA, would not be transferable under TUPE. Claims under the EPA must be brought within six months of the end of employment.

In Powerhouse, the transferors argued that the employment had ended in 1992, when the TUPE transfer took place, and that the claims were therefore out of date. Conversely, the employees argued that employment should be regarded as continuing (as TUPE transfers employment) so that their claims were within time against the transferor. The Lords unanimously agreed with the transferor and held that time limits for a pension-related equal pay claim will expire six months after the date of the TUPE transfer, as that is the date on which the employment with the transferor ends.

Ruth Buchanan is an employment solicitor and Christopher Holmes is a professional development lawyer at Ashurst

Ruling gives part-timers more rights

Assessing job similarities

• The actual work carried out by both types of employee should be analysed - taking into account similarities and differences. In doing this, the whole of the work carried out should be assessed.
• The essential question is not whether the jobs are different, but whether they are considered to be "broadly similar". An example might be an organisation that employs a full-time payroll clerk to run the management of its monthly payroll for a large sales division, but who also employs a part-time wages clerk to process the weekly cash payroll for a small number of cleaning staff. While the role of each individual would inevitably differ slightly, it is likely that these two employees would be considered as being engaged in broadly similar jobs.
• The Lords indicated that the tribunal had concentrated too much on the various differences between the retained firefighters and their full-time counterparts. Instead, the question is, are the differences of such importance as to prevent the work being regarded overall as the same or broadly similar?
• Another key consideration is the importance of the work carried out by each individual to the business
  as a whole. If part-timers and full-timers spend much of their time on the core activity of the business, it will be more likely that their work is broadly similar. If a part-time employee is only brought in to do peripheral tasks not central to the business, the work may not be deemed similar. For example, a company may employ a full-time marketing executive who handles all advertising, client functions and media coverage for a business, but a part-time marketing executive may also be engaged in the evenings to collate mailshots. Here, it is likely that the part-timer is not engaged in a broadly similar role, as their tasks are only secondary to the central function of the marketing department.
• Employers should not give too much weight to the additional functions carried out by full-time employees. The court highlighted that it is inevitable that there will be workplaces where full- and part-time workers do the same work, but the full-timers have extra activities with which to fill their time.
• The question as to whether full-timers and part-timers have a similar level of qualifications, skills and experience is relevant only to the extent that any differences in such skills affect the work they are actually engaged in.