In January 2000 the DTI published a consultation document introducing the
new draft part-time employees (prevention of less favourable treatment)
regulations, together with a short consultation document. The consultation
period ends on 27 February and it is intended the regulations will become law
by May 2000.
The new rights
The regulations implement the 1997 European directive on part-timers. The
directive had two distinct elements: the prohibition of less favourable pro
rata treatment of part-timers and the encouragement of part-time work and
provision of information concerning part-time work by employers. The draft
regulations recently published contain the former but not the latter.
The draft regulations introduce the substantive right to equal, pro rata
treatment, and provide ancillary protection for part-timers from dismissal or
being subjected to a detriment for exercising or attempting to exercise rights
under the regulations. The principle of pro rata equality of treatment is
defined in terms of a direct comparison between the part-time employee and a
comparator full-time employee (who should be identifiable as such having regard
to the custom and practice of the employer, and where relevant, the contract of
employment). To be used as the comparator, the full-time employee must be
engaged in the same or broadly similar work as the part-time employee, have a
broadly similar level of qualifications, skills and experience and work in the
same establishment (or another establishment if there are no full-timers in the
establishment in which the part-timer works).
Contract of employment
The substantive right is for part-timers not to be treated less favourably,
pro rata, as regards the terms of his or her "contract of
employment". The right applies only if the treatment is on the ground that
the employee is a part-timer and again only if the treatment is not objectively
justified. No guidance is given as to exactly what the test for such
justification will be. This will cover all pay and benefits, with equivalent
access to training. The new right will be most difficult for employers where
non-cash benefits have been provided, such as private medical cover and company
cars, since these are not easily divisible in the way salary is.
It is recommended all employers undertake an audit of benefits provided to
full-timers but not part-timers, and consider the arguments justifying current
practices. Many employers use a "cafeteria" system of benefits which
may assist in this regard, in that the employer can show part-timers are
choosing benefits up to a pro rata value as compared to full-timers. If a
part-timer believes he or she may have been treated unlawfully under the
regulations, he or she may request a written statement giving the reasons for
the treatment, to be provided within 14 days. A failure to provide this will
allow a tribunal to infer unlawful treatment.
Summary
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The regulations will make it much easier for part-timers to insist on pro
rata equality. Currently the only avenue open to them is to claim under the
indirect sex discrimination laws, which are rather oblique, and particularly
difficult for men. There are approximately 6 million part-time employees in
Great Britain and the Government believes 1 million of these will have a
comparable full-time employee. Now is the time for employers to plan!
by Russell Brimelow, Head of the employment group Boodle Hatfield
