All employees – including contract staff and part-timers – are now entitled to equality of treatment and benefits
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 came into force on 1 July 2000. The rules implement the European Directive on Part-Time Workers, adding a new species to the ever-growing list of protected staff.
Employers are prohibited from treating part-timers less favourably than full-timers, unless such treatment can be objectively justified.
The protection for part-timers is available to workers and not just employees, a theme reflected in the Working Time Regulations, National Minimum Wage Act and Data Protection Act. A part-time worker is anyone who provides services personally under a contract. This would include agency workers, temporary workers, contractors and home workers.
The right not to be treated less favourably is based on the pro rata principle in comparison to full-time workers with the same type of contract for the same employer. This should provide pro-rated equality for pay, access to promotion and training, sick pay, maternity, access to pension schemes, calculation of benefits from pension schemes, holiday, benefits, hourly rates and career break schemes.
How can you tell?
Comparable full-time workers are those working for the same employer with the same type of contract, doing similar work with similar qualifications. For example, fixed-term contracts cannot be compared to contracts on notice and staff should not be compared to non-employee workers.
The regulations prevent comparators with those from associated employers. One of the most obvious comparators is a full-timer changing to part-time work.
What kind of claim?
The regulations introduce the new concept of a written statement of reasons for less favourable treatment. A part-timer who feels subject to discrimination can make a written request for a reply in writing within 21 days which must state the employer’s reasons for such treatment.
The Government believes that the written reasons regime will help settle many differences. Workers can take their claims to a tribunal for a range of reasons – failure to provide written particulars, evasive or equivocal reasons from which infringement of rights can be inferred, a declaration of rights, recommendation of employer action and compensation. Any worker dismissed for bringing such a claim or giving evidence or information can claim automatic unfair dismissal without the need for a year’s continuity of employment.
Women no longer need to find male comparators for less favourable treatment and it is no longer only women who can assert discrimination in part-time contract terms. It remains to be seen if the written statement regime will have the desired effect.
The limit on two years’ compensation for pension claims appears to be contrary to EC Treaty Article 119, similar to the European Court of Justice decision in Preston v Wolverhampton Health Care NHS Trust.
There is little guidance so far on the defence of objective justification. The example of profit-related pay has been provided.
One key question will be whether the right to work part-time, or at least to work part-time on return from maternity leave, will be given statutory force.
William Granger is head of employment at Campbell Hooper Solicitors
• Employers are prohibited from treating part-time workers less favourably than full-timers, unless such treatment can be objectively justified.
• All terms are to be applied on the pro rata principle in comparison to a full-time worker with the same type of contract for the same employer.
• Protection for part-timers is available to workers, not just employees.
• All employers need to clarify their part-time terms and policies.
By William Granger