McMenemy v Capita Business Services Limited

Banking up holidays

McMenemy v Capita Business Services Limited,
8 March 2006, EAT website

Background

Mr McMenemy, initially a full-time employee, switched to part-time working in a company operating seven days a week. As he no longer worked on a Monday, McMenemy missed out on most Bank Holidays – the company’s policy being that only those working on the day on which Bank Holidays fell would benefit from them.

He brought a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, alleging that the company’s failure to allow him time off in lieu of such holidays constituted a detriment to him as a part-time employee when compared with a full-time worker.

Since 2000, part-time workers have been protected from detrimental treatment as a result of their hours. The critical question however, is whether a comparable full-time worker is treated more favourably. Here, the tribunal concluded that the fact McMenemy did not enjoy time off for Bank Holidays was unrelated to his part-time status – full-time employees who didn’t work on Mondays similarly lost out.

Appeal

McMenemy appealed, contending that he was entitled to additional holidays and that the company’s policy was unlawful as he was on a pro-rata basis receiving less holiday than a full-time colleague.

The Employment Appeal Tribunal (EAT) agreed with the tribunal that McMenemy was worse off for holidays than other members of his team, but found that this detriment arose because he did not work on a Monday, and not because he was a part-time worker. In addition, the fact that the organisation’s policy applied to all workers, full- and part-time, provided powerful evidence in support of the equal treatment of employees.

The EAT rejected his appeal.

Comment

As this case demonstrates, the real reason for any detrimental treatment of workers must be considered in all cases. The fact that the company operated around the clock ad a strong influence on the outcome.