In the first of a regular series, we delve into the XpertHR reference manual
to find essential information relating to one of our features. This month’s
topic…
– The Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000, which came into force on 1 July 2000, implement EU Directive
97/81/EC. Part-time workers (regardless of the number of hours they work) must
not be treated less favourably than comparable full-time workers unless the
employer can justify such less favourable treatment on wholly objective
grounds.
– Part-time workers have the right not to be treated less favourably in
matters relating to pay, overtime premium payments, holiday and holiday pay,
sickness benefits, selection for redundancy, access to pension schemes,
long-service awards, bonuses, commissions, etc.
– Part-time workers may challenge their employer’s evident disregard for
their statutory rights under the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 by demanding a written statement
explaining the reasons for discriminatory treatment.
– Part-time workers have the legal right not to be discriminated against,
victimised, dismissed or selected for redundancy for asserting their statutory
rights or for questioning or challenging their employer’s refusal or failure to
comply with those rights.
– Part-time workers must present their complaint within three months of
their employer’s alleged unlawful conduct.
Future developments
On 25 February 2002, the Government announced that it will be amending the
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 to
ensure that they are consistent with European Council Directive 99/70/EC on
Fixed Term Work.
The directive was due to be transposed into UK domestic legislation by 10
July 2002, but its implementation has now been delayed until 1 October 2002.
Under the amended regulations, which were expected to come into force on 30
June 2002, but are now likely to do so in autumn 2002, part-time workers on
fixed-term contracts will have the right to compare their terms and conditions
of employment with those enjoyed by full-timers employed on permanent (or
open-ended) contracts. As the law currently stands, they must compare their pay
and benefits with those enjoyed by full-time workers who are also employed on
fixed-term contracts.
The regulations are also to be amended to accommodate the judgment of the
House of Lords in Preston and others v Wolverhampton Healthcare NHS Trust and
others (No.2) [2001] IRLR 237 HL. The amount of compensation awarded by an
employment tribunal to a part-time worker treated less favourably than a
comparable full-time worker, in relation to access to (or treatment under) an
occupational pension scheme, will no longer be limited to the period beginning
two years before the date on which the worker’s complaint was presented to the
tribunal.
Definitions
Meaning of ‘worker’
It is important to note that the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 apply not only to ’employees’ but also
to workers who are not employees. In short, they apply to workers employed
under contracts of employment and to people (such as casual, seasonal and
temporary workers, freelancers, homeworkers, piece-workers, agency ‘temps’,
etc) who undertake to do or perform personally any work or service for an
employer, regardless of the nature of the contractual relationship between them
and that employer. The regulations do not, however, apply to people who are
genuinely self-employed.
Meaning of ‘full-time’ and ‘part-time’ workers
Workers are full-time workers if they are paid wholly or in part by
reference to the time they work and are customarily identifiable as full-time
workers in the organisation in which they work.
A ‘part-time worker’, on the other hand, is a person working in the same
organisation who is generally considered to be in part-time work.
In most city offices, for example (the same is generally true of factory
workers), the majority of staff may work a 35-hour week. The remainder may work
two or three days a week, or for three or four hours each day. The former are
generally understood to be in full-time work; the latter, in part-time work.
Meaning of ‘comparable full-time worker’
A ‘comparable full-time worker’ is a worker who:
– is employed under the same type of contract as a part-time worker;
– does the same or broadly similar work as that done by the part-time worker;
– has the same or broadly similar qualifications, skills and experience; and
– works at the same establishment as the part-time worker or, where no
full-time worker working at that establishment satisfies the above criteria,
works at a different establishment within the same organisation and satisfies
those criteria.
Rights and remedies
The regulations give part-time workers the right in principle not to be
treated less favourably than full-time workers who work for the same employer
under the same type of employment contract.
That right also extends to full-time workers who are transferred to
part-time work (for whatever reason) and to full-time workers returning to work
on a part-time basis after an absence lasting no longer than 12 months (whether
occasioned by dismissal, redundancy, maternity leave, parental leave, a lengthy
illness, a period of absence from work without pay, or whatever).
The latter rule applies whether or not the worker in question returns to the
same job or to a job at the same level under a contract (whether it is a
different contract or a varied contract), and regardless of whether it is the
same type of contract as that under which they were employed immediately before
the relevant period of absence began (Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000, regulations 3, 4 and 5).
Employers that treat their part-time workers less favourably than comparable
full-time workers, simply because they work part time, will be in breach of
their obligations under the regulations unless they can justify that treatment
on wholly objective grounds.
Key references
Legislation
– Council Directive 97/81/EC of 15 December 1997 ‘concerning the Framework
Agreement on part-time work concluded by UNICE, CEEP and the ETUC’
– Employment Relations Act 1999
– Employment Rights Act 1996
– Part-time Workers (Prevention of Less Favourable Treatment) Regulations
2001 SI 2001/1107
– Part-time Workers (Prevention of Less Favourable Treatment) Regulations
2000 SI 2000/1551
– Employment Protection (Part-time Employees) Regulations 1995 SI 1995/31
Cases
None to date
Documents
– staff and works handbooks
– contracts of employment/part-time workers contracts
– policy documents on:
– overtime payments
– contractual sick and maternity pay
– occupational pensions
– access to training
– redundancy
– grievance procedures
Further reading
– The Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000 and their accompanying guidance notes may be downloaded at:
www.legislation.hmso.gov.uk/si/si2000/20001551.htm
Further guidance on the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 may be downloaded at:
www.dti.gov.uk/er/pt-detail.htm
Publications include:
– The Law and Best Practice: A detailed guide for employers and part-timers
(URN 00/1132)
– Frequently asked questions about the Part-time Workers Regulations
– Factsheet for Part-timers on the Part-time Workers Regulations
Questions and answers
Can an employer treat part-time
workers less favourably than it treats full-time workers?
Not unless such treatment can be objectively justified. The
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000,
which implement EU Directive 97/81/EC, state that part-time workers (including,
for example, seasonal and casual workers) must not be treated less favourably
than comparable full-time workers in matters relating to pay, overtime premium
payments, holiday and holiday pay, sickness benefits, selection for redundancy,
access to pension schemes and other contractual benefits.
Can an employer choose to employ a
full-time person rather than two part-time people?
An employer may have sound business reasons for wanting to fill
a job vacancy with a full-time worker (rather than one or two part-time
workers), but may well be called upon to justify those reasons before an
employment tribunal.
Action point checklist
– Ensure that employment policies and
procedures (including those in relation to overtime payments, contractual sick
and maternity pay, occupational pensions, access to training and redundancy)
are audited so that part-time workers are not treated less favourably than
comparable full-time workers.
– In staff and works handbooks, and employment contracts,
remind part-time workers of their statutory rights under the Part-time Workers
(Prevention of Less Favourable Treatment) Regulations 2000, including their
right to be provided with a written statement explaining the reasons for any
allegedly less favourable treatment.
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– Encourage workers to use the grievance procedure if they
believe that they have been less favourably treated than comparable full-time
workers.
– Ensure that any… part-time worker’s request for a statement
in writing explaining the reasons for his or her (allegedly) less favourable
treatment is answered within 21 days. Managers and supervisors should refer all
such requests to the HR department or, in smaller establishments, to the
manager in charge of the establishment in question.
