The Scottish Court of Session has held that a part-time worker whose non-working day fell on a public holiday was not entitled to time off in lieu of the public holiday. However, the facts in this case are unusual and this principle will not automatically extend to all part-time workers.
Capita’s business operates seven days a week. McMenemy worked part-time on Wednesdays, Thursdays and Fridays. Capita’s holiday policy says that employees are only entitled to public holidays when they fall during normal working hours. McMenemy was refused time off in lieu of public holidays that fell on Mondays as this was not one of his working days.
Less favourable treatment
McMenemy brought a claim under the Part-Time Workers Regulations 2000 arguing that he had suffered less favourable treatment than full-time colleagues, based on his part-time status. The tribunal and the EAT dismissed McMenemy’s claim on the basis that a comparable full-time worker who worked Tuesday to Saturday, was treated in exactly the same way. The Scottish Court of Session agreed and dismissed the claim.
A full-time worker who did not work on a Monday – bearing in mind that this is a seven day a week operation – would have been treated in the same way as McMenemy. The reason why McMenemy did not get time off in lieu of Monday public holidays was not because he was a part-time worker it was because he did not happen to work on Mondays.
In organisations where normal working days are Monday to Friday, the position is less clear, as anyone working full time will, by definition, work on a Monday and the employer will not be able to point to a full-time comparator who is treated in the same way.
Where the complainant is a woman, there is also a risk of an indirect sex discrimination claim.
What you should do
The DTI in its guidance on part-time workers rights, suggests a pro rata approach.