Part-time workers


Last Modified  05 May 2015

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Meaning of a 'part-time' worker
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 define part-time workers as those who are paid wholly or in part by reference to the time they work and is "not identifiable as a full-time worker". There is no threshold of working hours that must be met to differentiate between full-time and part-time working. This depends on what the employer regards as full-time work.

Part-time workers are, therefore, any workers who are contractually required to work less than the hours the employer identifies as full-time. Employers should, therefore, take care in defining the number of hours that their workers are required to work, their patterns of work and whether the organisation retains any discretion to change those working hours and patterns.
Rights of part-time workers
Part-time employees have the same statutory employment rights as full-time employees, regardless of the number of hours they work. Where workers are not employees, the statutory rights available to them are more limited.

In either case, the part-time workers regulations provide both part-time workers and part-time employees, with the right not to be treated less favourably than comparable full-time workers on the basis of their part-time status. There is no minimum period of qualifying service for this right.

This right applies equally to men and women. However, in practice women may be more likely than men to bring such claims as a significantly higher proportion of women work part-time. For the same reason, less favourable treatment of part-time workers could also give rise to claims of indirect sex discrimination (see British Airways Plc v Starmer [2005] - Sex discrimination Related cases - Hours of work. Employers should, therefore, also consider whether any provisions, criteria or practices that they apply that may disadvantage part-time workers and whether these are justifiable on objective grounds.

(Read more on 'Employment status' and 'Sex discrimination').
Protection from less favourable treatment
Part-time workers should not be subjected to the following because of their part-time status:
  • less favourable treatment regarding their contractual terms
  • any other detrimental treatment.

These protections apply only if the reason for the treatment in question is the worker's part-time status and where the employer cannot objectively justify that treatment. Part-time workers should, therefore, have access to the same contractual rights and benefits as full-time workers, unless the employer can objectively justify different treatment.

For example, if a full-time employee is entitled to 30 days' holiday each year, part-time employees should have the same amount but reduced in proportion to the hours they work, unless the employer can objectively justify different treatment.
Protection for workers
The part-time workers regulations apply to workers, as well as employees. Those working under contracts of employment or any other contract for the personal performance of work or services will, therefore, have protection. The regulations do not apply to self-employment.

Those who may be covered include:
  • part-time employees
  • casual workers
  • 'bank' workers
  • homeworkers
  • zero hours staff.
Comparing treatment - The comparator
Part-time workers are protected from less favourable treatment when compared with a "comparable full-time worker". For these purposes, an appropriate comparator is someone who works:
  • for the same employer
  • on the same type of contract
  • in the same or broadly similar work having regard (where relevant) to whether that person has a similar level of qualification, skills and experience at (or based at) the same establishment (or at a different establishment where no comparator exists at the same one).

The comparator must an actual person, not a hypothetical, comparator (see Carl v University of Sheffield [2009]).
Comparing treatment - Same type of contract
Treatment is only comparable if both the part-time and full-time worker are working work under the same type of contract. For these purposes, there are four distinct groups of contract (both parties must work on the same type):
  • contracts of employment
  • contracts of apprenticeship
  • contracts governing workers who are not employees
  • contracts governing other workers that it is reasonable for the employer to treat differently because they have a different type of contract.

Fixed-term and permanent contracts of employment are treated as the same. Part-time fixed-term employees can, therefore, compare their treatment with full-time permanent employees. However, part-time workers who are not employees cannot compare their treatment with full-time employees, even if they are performing similar work, because the type of contract is different.

Casual workers could have difficulty in claiming protection from less favourable treatment unless they can identify a comparable full-time worker who works on the same type of contract. For example, where part-time workers are engaged to work "on demand" according to the needs of the business and are paid for their hours worked and have the option of refusing work, their treatment would not be comparable with full-time workers who are required to work fixed hours for fixed salaries and who cannot refuse work (see Wippel v Peek and Cloppenburg GmbH [2005]).

Temporary agency workers who are engaged through an employment agency to perform temporary work for a hirer cannot compare their treatment with full-time employees directly employed by the hirer. They may, however, have alternative rights to equal treatment under the Agency Workers Regulations 2010.
Comparing treatment - Same or broadly similar work
Case law guidance (in Matthews and others v Kent and Medway Towns Fire Authority [2006]) is helpful when considering how to identify the same or broadly similar work. In that case the Law Lords said courts should concentrate on:
  • the similarities between the jobs rather than the differences
  • the importance of the work of both groups to the organisation as a whole
  • whether any differences are so important that they prevent the work being considered overall as the same or broadly similar, when a substantial part of the work of both groups is the same.

Employers should, therefore, focus on the similarity of the work carried out by both groups rather than focusing on the differences. If a substantial part of the work is the same or similar for both groups, any other differences such as additional skills, duties or responsibilities, must be of significant importance and must actually contribute something different to the work being done.

For example, a part-time machinist would be able to compare treatment with a full-time machinist who carries out the same duties but who also occasionally orders stock and acts as a first aider. Those differences are not significantly different.
Defining and identifying less favourable treatment
Less favourable treatment generally involves treatment of a nature that would, or might, lead a reasonable worker to take the view that he or she had been disadvantaged (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003]).

This can occur in various ways. For example, part-time workers might receive less favourable contractual terms than full-time workers, such as less pay, benefits or holidays. Alternatively they might be excluded from bonuses that are provided to full-time workers. Less favourable treatment could also occur where employers impose certain conditions on part-time workers that are not applied to full-time workers, for example, by offering fewer promotion opportunities to part-time workers.

A four-stage test was set out in another case, Hendrickson Europe Ltd v Pipe [2003] [BAILII]. Here the EAT said courts should ask:
  • What is the treatment complained of?
  • Is that treatment less favourable than that of a comparable full-time worker?
  • Is the treatment on the grounds of the worker's part-time status?
  • If so, is it justified on objective grounds?

Identifying the reason for less favourable treatment
If the treatment in question, or at least the effective and predominant cause of the treatment, is not the worker's part-time status then a worker's claim will fail for the purposes of the part-time workers regulations (see Carl v The University of Sheffield [2009] UKEAT 0261).

If the difference in treatment is because of the part-time status, the employer should consider if that treatment is objectively justified, in other words, if it can be shown that the treatment is necessary and appropriate to achieve a legitimate business objective.

However employers should also consider carefully the possibility of any other discrimination claims which could be brought in relation to the difference in treatment that may require justification, particularly on the basis of indirect sex discrimination (London Underground Ltd v Edwards [1998]).
The pro rata principle
In determining if a part-time worker has been treated less favourably, employers should apply the pro rata principle to contractual terms to ensure that the part-time worker is not treated less favourably. In most cases, this will simply mean offering the same terms or benefits to the part-time worker as are offered to comparable full-time workers.

For example, where a part-time worker is required to work three days a week and a full-time working week is five days, the part-time worker would generally have the same contractual rights and benefits as a full-time worker, subject to a pro rata reduction of three-fifths of the value of those benefits.
Objective justification
Once less favourable treatment of a part-time worker on the basis of his or her part-time status has been identified, employers must consider if that treatment is objectively justified, in other words, if it is designedto achieve a legitimate aim or business objective and the treatment is a necessary and appropriate way to achieve this objective.

In some cases, the pro rata principle will be difficult to apply, particularly where the benefit is of a type that cannot easily be divided up. In those circumstances employers may need to consider other options available or whether they can justify the less favourable treatment.

For example employers may choose to:
  • provide the same benefit to the part-time worker as they provide to the full-time worker
  • provide a pro-rata monetary allowance to compensate for not providing the benefit
  • choose not to provide the benefit (but this must be objectively justified).

The fact that part-time workers could be treated more favourably than full-time workers if certain benefits are not proportionately reduced is not unlawful because full-time workers cannot claim less favourable treatment by comparison with part-time workers.

In relation to part-time workers, it is not appropriate to justify treatment by looking at the whole package and considering if the value of the contractual package overall is as favourable. Instead employers must adopt a 'term by term approach' and consider the difference and potential justification in relation to each term.
Term-by-term approach
When considering the treatment of a part-time worker, it is necessary to adopt a 'term-by-term' approach rather than looking at the contract as a whole package (see Matthews v Kent and Medway Towns Fire Authority [2006]). Less favourable treatment cannot be offset or cancelled out by more favourable treatment of a different kind.

Employers should, therefore, consider each term or benefit that applies and whether any different treatment can be justified. It may be difficult to objectively justify a difference in treatment unless it can be shown, for example, that it would not be feasible to give the same benefit on a pro-rata basis or to provide an alternative benefit or compensation in place of that particular term.

This should also enable the employer to reduce the risk of a successful claim under the Part-time Worker Regulations or under the Equality Act 2010 where the difference is considered to be discriminatory.
Written statement - less favourable treatment
Where part-time workers believe that they have been subjected to less favourable treatment on grounds of their part-time status, they may make a written request to obtain a written statement of the reasons for the treatment from their employer. Employers are required to provide this statement within 21 days of the request.
Part-time workers should receive the same basic and enhanced hourly rates of pay as comparable full-time workers. This could include payments such as shift allowances, bonuses, unsocial hours payments or other additional payments.

Depending on the nature of the payment, it may or may not be appropriate to apply a pro rata reduction. Employers should consider the most appropriate approach in relation to each term. For example:
  • Shift allowances - where an employer offers an allowance or enhanced rate of pay for full-time workers who work certain shifts, the same rate or allowance may be applied to part-time workers.
  • Bonus - depending on the type of bonus awarded, the employer may offer a pro-rata share, based on the relative proportion of time worked by the part-time worker.
  • Unsocial hours - a standard payment for working during a certain period (for example, midnight until 6am) should apply equally to full-time or part-time workers if they worked the same period.
Part-time workers are not treated less favourably if they are only eligible to receive enhanced overtime payments once they work the same number of hours as full-time workers are required to work before being eligible for enhanced rates. Part-time workers who work additional hours will, therefore, continue to be paid at their normal rate of pay until they work the equivalent full-time hours.
Holidays and public holidays
Part-time workers can be granted the same amount of holiday as a comparable full-time worker on a pro rata basis.

For example, if full-time workers who work five days a week are entitled to six weeks' paid holiday each year, a part-time worker who works two days a week would receive six weeks' paid holiday each year but a 'week' consists of only two days. His or her pro rata share would be two-fifths of the full-time amount, which would be 12 days.

The pro-rata approach is also relevant to public holidays. This will ensure part-time workers are not disadvantaged in comparison to comparable full-time workers.

For example, where an employer provides full-time employees working five days a week with eight paid public holidays each year in addition to their annual holiday entitlement, a part-time employee working two days a week should have a pro rata share of two-fifths of the public holidays.

As the majority of public holidays fall on a Monday, this often raises questions about the treatment of part-time workers who do not work on Mondays. If employers operate a policy of only providing part-time workers with paid time off for bank-holidays that fall on their ordinary working days, this would mean that part-time workers who do not work on Mondays could be treated less favourably than comparable full-time workers. They would not receive a pro rata share of full-time holiday entitlement workers.

To address this issue the employer could attempt to objectively justify the difference in treatment. Alternatively they may even be able to establish that the reason for the difference is not part-time status, for example where the employer operates a 7-day operation and no employees receive holidays for non-working days (see McMenemy v Capita Business Services [2007]).

However, the most straightforward and least risky way is likely to be for the employer to adopt the pro-rata approach and provide the part-time worker with a proportionate amount of holidays. Time off could be granted in lieu on days that the worker would ordinarily work. The employer could grant these days off in lieu on other days of the week that the employee would work.
Selecting part-time employees for redundancy before full-time employees on the basis of their part-time status is likely to be less favourable treatment and indirect sex discrimination, in the absence of any objective justification. Employers should, therefore, ensure that any redundancy selection criteria are objectively justified. Where employers have a particular need for a specific pattern of work, they should also consult fully with part-time workers to identify if any flexibility can be achieved.

Redundancy payments may be calculated on the basis of the employee's pay at the date of termination, even though this may in effect disadvantage part-time workers by failing to take into account the fact that they may have previously worked full-time (see Barry v Midland Bank [1999]).
Occupational pension schemes
Part-time workers should have the same rights to access an occupational pension scheme and to the right to benefits of the scheme (see Bilka-Kaufhaus GmbH v Weber von Hartz [1986] and Barber v Guardian Royal Exchange Assurance Group [1990]). 

However, employers should also consider their obligations under automatic enrolment rules. These requirements can include employees, temporary and casual workers (including zero hours workers), agency workers and contractors, and consultants who are not genuinely self-employed, subject to meeting the relevant age and earnings thresholds.

Specific guidance on automatic enrolment is available from the Pensions Regulator

Jane Klauber is a partner at Russell-Cooke