What key legislation protects part-time staff?
Part-time staff are essentially protected under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW regulations) which came into force in July 2000. They make it unlawful to treat part-timers any less favourably than full-time staff unless the employer has objective justification for such treatment.
They protect staff regardless of their length of employment and the number of hours they work. And they apply to any worker contracted for less hours than would normally be regarded as full-time hours for that employment.
As with other discrimination laws, there is no statutory ceiling to the damages a tribunal may award in favour of a part-time worker if an employer is found to have breached the regulations without objective justification.
The introduction of this legislation in 2000 was an important milestone for part-time workers. Prior to that the only protection available to part-time workers was to allege indirect sex discrimination under the Sex Discrimination Act 1975.
Who would be an appropriate comparator for a worker making a claim under the regulations?
A part-time worker can compare themselves with a full-timer who works “under the same type of contract” (Regulation 2(3)) and is employed “in [the] same or broadly similar work” with regard to skills, qualification and experience (Regulation 2(4)). The PTW regulations do not provide for a comparison with a hypothetical comparator. But they do allow a full-time worker, who has either seamlessly or following an absence of a maximum of 12 months, become a part-timer, to compare their treatment with the way they were treated when they worked full-time. This important issue of a comparator has been the subject of the first major appelate decision regarding the PTW regulations.
In the case of Matthews and ors v Kent and Medway Towns Authority and ors, 12,000 part-time firefighters claimed they had been treated less favourably than the full-time staff with regards to pension rights and other benefits.
For the purposes of comparison under the PTW regulations, they claimed parity of terms with the full-timers. The tribunal found, as did the EAT, that although both were engaged on a particular type of contract, the part-timers had failed to prove they were engaged under the same type of contract as the full-time staff (as required by Regulation 2(3)). They also failed to prove they were engaged in the same or broadly the same work as their full-time colleagues (as required by Regulation 2(4)).
This decision was viewed as somewhat harsh as it seemed to restrict the application of the PTW regulations by making it more difficult for part-time workers to compare themselves with full-time workers for the purposes of seeking equal treatment under the PTW regulations.
But the recent decision by the Court of Appeal has overturned the first part of that decision, and found that both full-time and part-time workers were engaged on the same type of contracts. It found, however, that there were sufficient differences in the actual work carried out so as to prevent the part-time workers complying with Regulation 2(4). This decision bodes well for part-time staff seeking future redress under the PTW regulations, but is cold comfort for the firefighters themselves.