The new part-timers’ regulations have been in force since 1
July 2000. Very little case law so far has been generated by them. The reason
may be that it is still early days. However, the regulations are very narrow
and in practice may not help many part-timers.
The pitfalls in the regulations
Part-timers are able to bring claims by showing their
treatment is worse pro rata than that given to a comparable full-timer. But
part-timers working under a different type of contract to an otherwise
comparable full-timer are precluded from making a comparative claim.
The message for employers is clear – if it is possible to
put part-timers on to a slightly different type of contract, it may be possible
still to pay them relatively less, or provide relatively lower benefits.
Employing part-timers in a different legal entity will also avoid the
application of the regulations as the relevant part-timer must be employed by
the same employer as the comparable full-timer (and even at the same site –
unless there are no comparable full-timers on that site).
Where part-timers carry out work which is not the same or
similar, but of equal value, or where the work is equivalently rated, the
regulations will also not assist. Furthermore, part-timers cannot use as a
comparator a full-timer not employed contemporaneously with them.
Recourse to the old law
Part-timers will therefore have recourse to the old law for
many of the practical difficulties they face. For example, the Equal Pay Act
1970 allows part-timers to compare their pay (albeit only with members of the
opposite sex) even if they are employed by an associated employer rather than
the same employer. The type of contract
the part-timer is employed under will also be irrelevant, and a claim will
still lie under this Act, if the work carried out is different, but of equal
value or equivalently rated.
Article 141 of the Treaty of Rome (a free-standing source of
equal pay claims) allows the part-timer to compare their pay with that of a
predecessor (again provided that the comparator is of the opposite sex).
The Sex Discrimination Act, 1975, under which claims of
indirect discrimination can be made, allows claims to be made in relation to a
hypothetical man. This Act also covers various issues in relation to the
recruitment of part-timers, and is still the only legal source for a right to
work part-time in certain cases (eg. on return from maternity leave where the
job does not need to be done on a full-time basis).
All of these three other sources of law are therefore
arguably more relevant to many part-timer issues than the regulations