Part-time status need not be the sole reason for discriminatory treatment for a claim to succeed under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations).
Miss Sharma and her colleagues were employed as part-time lecturers for Manchester City Council’s Adult Education Service. Their contracts contained a term that allowed the council to reduce their hours, subject to a minimum annual total of one-third of the hours worked in the previous year. Not all part-timers were subject to this term. By way of a cost-saving exercise, the council triggered the reduction in hours for the part-time employees who were subject to this specific term and many of their hours were substantially reduced.
Sharma and her colleagues complained to an employment tribunal that the reduction clause, and the reduction itself, amounted to less favourable treatment, as this term did not apply to full-timers. Relying on a previous case of Gibson v The Scottish Ambulance Service, the tribunal rejected the claim on the basis that the claimants’ part-time status was not the sole reason for the treatment – other reasons applied as well, such as the fact that the part-time contracts contained the reduction clause. The claimants appealed to the Employment Appeal Tribunal (EAT).
The EAT allowed the appeal and dismissed the “sole reason” test that the tribunal had adopted.
The EAT said that part-time status need not be the sole reason for less favourable treatment in order that a successful claim could be brought under the regulations. For less favourable treatment to be potentially unlawful, the part-time status need only be a partial reason (or one of a number of reasons) and not the whole or only reason. The EAT stated that it did not matter if other part-time employees were not also subject to the less favourable treatment if their part-time status is a reason for the adverse treatment. To the extent that Gibson had decided that part-time status had to be the sole reason for the less favourable treatment, this was incorrect.
This decision highlights a departure from the approach taken in Gibson by bringing the concept of part-time discrimination into line with other forms of discrimination, such as sex or race, where the ground of discrimination need only be part of the reason for the less favourable treatment.
Employers will no longer be able to rely on the argument that, as long as they treat some part-timers proportionately equal to full-time comparators, the regulations will not protect the part-timers who are treated less well. Employers should conduct a review of part-time terms and conditions to ensure they are pro-rated as against full-time terms and conditions. Where a comparable full-time worker is entitled to pay or any other benefit, the part-time worker should be entitled to a proportion of that pay and benefit, based on the proportion of hours worked when compared to a full-timer’s weekly hours.
This case is likely to impact on terms and conditions such as bank holidays. Before this case, it was open for employers to argue that the reason for less favourable treatment in not granting bank holidays to employees who do not work Mondays was not solely on the grounds of their part-time status, but also because they did not work on Mondays. It will no longer be possible to advance this argument.
Claire Thomas, associate, Addleshaw Goddard