Frequently asked questions on the legal issues relating to part-time work
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Here we list a selection of key cases on the rights of part-time workers, providing a summary of the decision and its implications for employers.
British Airways v Pinaud | Employment Appeal Tribunal | 1 August 2017
Issue: Part-time workers’ pro-rated pay
A part-time employee had been employed by BA for 30 years, initially full time and then, after returning from maternity leave, part time until 30 April 2015 when she took voluntary redundancy. The BA shift patterns were complicated and working hours varied, but in summary the employee was expressly described by the company as being on a 50% contract. During this time she received half of full-time staff pay. In fact, because full-time staff worked 243 days and part-time staff worked 130 days, the part-time staff worked for 53.5% of full-time hours but only received 50% of full-time pay.
To bring a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a part timer has to compare themselves to a full-time individual, to show their treatment is less favourable than that of the full-time employee. Pinaud was able to identify another female staff member as a comparator. This employee had worked full-time for the entire period that Pinaud worked part-time. Pinaud was able to show that she worked over 53 % more of the duty and flying hours of her comparator, whilst only receiving 50% of the pay.
The Employment Tribunal and the EAT found that there had been less favourable treatment on the grounds of part-time working. However, under the regulations, employers have a defence if they can show that such treatment was a ‘proportionate means of achieving a legitimate aim’. The company argued that the less favourable treatment was justified, on the grounds that any variation in hours was minimal, and achieved the legitimate aim of providing a workable contract of 50% hours, the working year not being divisible precisely by the full-time or part-time hours. The EAT allowed the employer’s appeal, but remitted the case back to the employment tribunal to consider statistical evidence to assess if the working hours and pay arrangements were a proportionate means of achieving a legitimate aim.
Implications for employers
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 exist to ensure employers are unable to treat part-time workers less favourably than their full-time counterparts.
Employers with part-time and full-time staff must try to ensure consistent contracts. Where part-time employees are paid a set basic pay but work variable hours, the precise number of hours that they work should be carefully logged to ensure that part-time staff members are paid correctly.
In most cases, the pro-rata principle should be applied, so that part-time workers who are required to be available for work for 50% of the time a full-timer is required should have a salary that reflects this.
If a pro-rata system does not work employers should set out why and document the measures the company is taking to mitigate the issue.
Employers must show they have taken steps ensure that part-time employees are properly remunerated equally compared to their full-time counterparts.
Justifying less-favourable treatment may be possible but is difficult, workers may also bring sex discrimination or equal pay claims which are complex to defend.
Fidessa plc v Lancaster | Employment Appeal Tribunal | 1 March 2016
Issue: Maternity returners moving to part-time working
A full-time engineer for a software company supplying the financial services sector submitted a flexible working request to work part-time on her return from maternity leave. She suggested four days a week, from 9am to 5pm, making it clear that she needed to leave at 5pm to collect her daughter from nursery. Her regular line manager agreed some work after 5pm could be done remotely from home.
During this manager’s absence, another manager refused the same flexibility and later proposed a re-organisation reducing the number of roles in the team. One of the new roles was a similar role to the Lancaster Lancaster’s with an enhanced requirement to perform work from the office after 5pm. She did not apply for this role, as it was more heavily focused on particular tasks occurring after 5pm. She was then dismissed by reason of redundancy.
She claimed unfair dismissal, indirect sex discrimination, harassment and detriment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The employer argued that, as the engineer had been absent in total for more than a year, she could not point to her previous terms and conditions as a comparator. Lancaster had also heard from another team member that, during the redundancy exercise, her manager had sworn out loud on learning she was pregnant, saying “Oh x, she’s pregnant”. She had not been present herself when this comment was made.
The EAT found the engineer had been unfairly dismissed, had suffered indirect sex discrimination and received detrimental treatment for being part-time worker. The requirement to undertake the work after 5pm at the office was a provision which created a disadvantage more likely to be suffered by women. The engineer suffered this disadvantage and it was indirectly discriminatory. Requiring her to finish her work later was inconsistent with the agreement that had been reached and was less favourable treatment arising out of her part-time status.
Lancaster also claimed direct discrimination and harassment, but the EAT felt that the single remark from the manager would not amount to a sufficient detriment for the purposes of direct discrimination and could not create an intimidating, hostile, degrading humiliating or offensive environment for the purposes of the harassment claim. It remitted these aspects of the claim back to the employment tribunal to be reconsidered.
The EAT also said it would be artificial to require women to return to work after maternity leave for one day before taking accrued annual leave, and that an employment relationship isn’t on hold while an employee is on annual leave.
Implications for employers
Employees who take less than 12 months' maternity leave, but then take annual leave, and change to part-time working on their return, are still protected by the part time worker regulations.
Employers should always honour any flexible working arrangements that have been agreed. If they are concerned about the changes, they may perhaps agree to a trial period first, to see if the changes can be accommodated.
Workers switching to part-time work can compare their new terms and conditions with those that they enjoyed on their full-time contract, to ensure they are treated no less favourably.
Some requirements, such as requiring work to be undertaken outside normal hours or only in the office, may disadvantage women and may, therefore, lead to sex discrimination claims. This is because put women are put at a disadvantage because of their childcare responsibilities. Employers should properly consider alternative ways of working, including working from home, and be able to justify the reasons for any refusal.
Moultrie v Ministry of Justice | Employment Appeal Tribunal | 16 January 2015
Issue: Correct comparators for part-time workers claiming discrimination
The claimants were members of various medical tribunals. They spent 100% of their working time sitting in tribunal, and were paid by way of fees, but were not eligible to participate in the full-time medical members’ pension scheme. The fee-paid members said they spent most of their time on identical tasks as the full-time members, who spent 85% of their time sitting in tribunal.
The Employment Appeal Tribunal found that the other 15% of the full-time members' time was spent doing appraisals, recruitment, and training, and was of such importance that the work actually done overall by the two groups was not the same, or broadly similar. The full-time members were, therefore, not appropriate comparators. This meant the fee-paid members could not pursue their claim for less favourable treatment on the grounds of their part-time status, and the employer was not forced to show whether its failure to provide the pension was objectively justified.
Implications for employers
Under the part time work regulations, there has to be an actual comparator, unlike other discrimination legislation, where the comparator may be actual or hypothetical.
Part-time workers must identify a full-time comparator who:
- works for the same employer
- is employed under the same sort of contract
- is engaged in broadly similar work
- is working, or is based at, the same establishment as the part-time worker.
The worker’s part-time status does not have to be the sole reason for the treatment but must be the effective and predominant cause of the less favourable treatment that the worker has complained about.
This case shows that even if a high proportion of the work done by a full-time employee is the same as the part-time employee, they may not be a valid comparator. Employers should still be wary, as treating part-timers less favourably than full-timers doing broadly similar work can trigger a claim.
Advocate General for Scotland v Barton | Court of Session | 23 December 2015
CSIH 92 15
Issue: Part-time workers – need for actual, full-time workers as comparators
This Scottish case involved a part-time clerk to the Income Tax commissioners. The clerk retired and did not receive a pension. He had worked 50% of full-time hours and had compared himself to another part-time clerk employed in a post involving 70% working. This clerk had got a pension on retirement. This was because the department treated someone working 70% or more as a full-timer because they devoted substantially the whole of their time to the job.
By the time Barton’s case got to the Court of Session, the issues were whether the clerk had been treated unlawfully under the Part- time Workers (Prevention of Less Favourable Treatment) Regulations 2000, using the 70% worker as the comparable full-time worker, and whether the regulations’ requirement to use a full-timer as the part-timer’s comparator could be ignored.
The Court of Session decided the case in the employer’s favour, holding that judges could not make such a radical amendment to the legislation. There was simply no provision in the regulations for a part-timer to compare themselves with another part-timer, even one doing substantially more hours. Therefore the 70% worker was not a suitable comparator because he was not full-time. Barton had failed to show that his treatment was less favourable than an actual full-time comparator.
As the clerk had retired only one year after the regulations came into force he could only have claimed equal pension rights for one year or so anyway.
Implications for employers
This case is important regarding the correct choice of comparators, but also the correct way to interpret the statutory provisions.
Cases under the Part-Time Workers Regulations 2000 are relatively rare, but problems can arise where full- and part-time staff are treated differently. Employers should consider carefully whether they are discriminating against part-time staff.
As well as claims under the part-time work regulations, employers may face claims for indirect sex discrimination. Part-time workers have the right not to be treated less favourably than comparable full-time workers, unless such treatment can be objectively justified. Comparable full-time workers are those who work for the same employer, in the same establishment on the same type of contract, doing the same or broadly similar work, and having a similar level of skills, qualifications and experience. Part-time workers cannot rely on hypothetical comparators or those working longer part-time hours.
Employers may have a defence if they can justify different treatment between part-timers and full-timers on objective grounds. If employers can prove that any less favourable treatment is unavoidable due to legitimate business interests, they may have a defence to a claim from a part-time worker. Employers should record the business aim pursued and be able to show that the relevant measures taken to achieve these aims are proportionate. They need to evaluate the impact of unfavourable treatment on individual employees to decide if any measures are proportionate.
McManus v Chief Constable of Lincolnshire Police | Employment Tribunal | 4 August 2009
Issue: Part-time workers - weekend working
Part-time female employees with the Lincolnshire police force were required to work two Saturdays or Sundays per month. The employees claimed sex discrimination.
The employment tribunal decided this was not indirect sex discrimination as the women could not show that weekend working put women at a particular disadvantage.
Implications for employers
Employers can require employees to work at the weekend provided the hours of work are either agreed in the employment agreement at the outset, or by subsequent agreement.
Employees don’t have to work on Sundays if they are:
- shop workers who started with their employer on or before 26 August 1994
- betting shop workers who started with their employer on or before 2 January 1995.
Shop and betting shop workers can opt out of Sunday working at any time, even if they agreed to it in their contract, unless Sunday is the only day they have been employed to work.
If employers require staff to work on a specific weekend day, this may not amount to sex discrimination. However, it may be religious discrimination if the day is a regular religious day of worship such as a Friday or a Sunday. If disadvantage is caused to those who are of a certain religion, then the employer’s insistence may be religious discrimination unless the employer can justify the need.
The factors that an employer should evaluate against the detrimental impact on the employee include:
- how other staff are affected, for example, whether some staff would have to work a disproportionate amount on certain days
- whether the change is likely to lead to more cost, for example, getting other staff to cover the work
- how customers or service users would be affected if there is a need for continuity of service.
Thomas v Arts Council of Wales | Employment Tribunal | 17 June 2009
Issue: Part-time workers – insistence on full-time working and sex discrimination
The claimant asked to work part-time on her return from maternity leave. The employer refused, saying it needed full-time hours. The employer had not handled the flexible working request well, and the employee claimed the way the organisation dealt with it was a fundamental breach of contract, breaking the implied term of trust and confidence. The employee claimed constructive unfair dismissal and indirect sex discrimination.
The employee won her discrimination claim but lost the constructive dismissal one. The tribunal was not convinced by the employer’s argument about its need for the employees to be available at work for five days a week.
The interesting points made by the tribunal were that:
- the delay caused to a client by having to wait a few days until the employee was next at work was effectively the same as a client having to wait until Monday morning if an issue arose when the offices were closed at the weekend
- it did not accept the arguments that it was hard to recruit another part-time employee to share the role as the employer had not even made enquiries about the availability of such staff.
The tribunal was not satisfied that the breach in mishandling the flexible working request was the reason for Thomas’ resignation. The employee failed to show that she had been constructively unfairly dismissed but won the unlawful indirect sex discrimination claim.
Implications for employers
Refusing to allow employees who request part-time working after maternity leave could be indirect sex discrimination. Indirect discrimination occurs when an employer’s provision, criterion or practice applies to all employees in the same way, but particularly disadvantages certain employees more than others because of their protected characteristic. A refusal to work part time particularly disadvantages women, as they are more likely than men to care for children.
Employers sometimes refuse requests because they want a role only to be done on a full-time basis. They can attempt to justify indirectly discriminating but only if they can show a good enough business reason for full-time working. Employers should note that:
- The need to provide a service full-time can be good enough business reason but this depends on the precise role and the facts of each case.
- To objectively justify a requirement to work full-time, it must be a proportionate means of achieving a legitimate aim and must correspond to a real need on the part of the employer.
Organisations may attempt to prove their legitimate aim is to please clients, and clients prefer full-time staff to part -time workers. The employer will have to show, for example, that another part-time employee could not be found to job share the role. In addition, the employee may argue that any delay by having to wait a few days until the employee is back at work is no different to waiting until Monday morning if an issue arose when the offices were closed at the weekend.
Using a need for full-time staff as a defence to an indirect sex discrimination claim requires hard evidence that the employer’s service really must be provided by one person, five days a week, and this is challenging.
Fareham College Corporation v Walters | Employment Appeal Tribunal | 14 May 2009
Issue: Part time workers - comparators for disability discrimination reasonable adjustments
In this disability discrimination case, one of the many issues was part-time working. A lecturer in computing wanted to return to her job on reduced hours after an illness. She had plantar fasciitis, causing pain in her feet and affecting her mobility. She also had fibromyalgia. She was off sick and wanted a phased return to work, involving part-time hours. Among other claims, she brought a claim of disability discrimination, failure to make reasonable adjustments and disability-related discrimination. The employer argued, among other things, that managing part-time staff was difficult, but produced no evidence as to why the claimant could not work part-time. There were already part-time staff working at the college.
The EAT held that the employer had failed to make reasonable adjustments and there had been less favourable treatment for a reason related to the employee's disability.
The college had argued that the tribunal had failed to consider the issue of the comparator properly. Did the refusal of a phased return to work put the employee at a substantial disadvantage in comparison with non-disabled person, for example? However, the EAT said that as the employee was unable to return to more demanding hours because of her disability, she was liable to dismissal, placing her at a substantial disadvantage compared to other non-disabled employees. There were also arguments based on the earlier House of Lords case, London Borough of Lewisham v Malcolm (2008), about the need to carry out a comparative exercise but the EAT held that the college’s failure to make reasonable adjustments made it impossible to justify its treatment of the employee.
Implications for employers
Employers have a duty to make reasonable adjustments for a disabled person to enable them to do their job. Employers discriminate against disabled staff if, for a reason related to the person's disability, the employer treats them less favourably than it would treat others. There is a defence if the employer can show that the treatment in question is justified.
Discrimination also occurs if there is failure to comply with the duty to make reasonable adjustments, which can relate to many matters including hours of work, or any physical feature of the employer’s premises.
Although any employee can ask for flexible working or part-time hours, a disabled employee can specifically ask for flexible working as a reasonable adjustment, which gives them more rights under the Equality Act 2010.
Employer should always consider whether it can offer a disabled employee reduced working hours as a reasonable adjustment before dismissing them. The employer may not have to do this if there are very good business reasons why this is not possible. However, employers would have to prove those reasons and ensure they have looked at all the possibilities.
An employee who brings a successful claim for failure to make reasonable adjustments is likely to be awarded compensation, which is uncapped.
Carl v University of Sheffield | Employment Appeal Tribunal | 15 May 2009
Issue: Part time workers – comparators for less favourable treatment
A part-time shorthand teacher in the university’s journalism department complained that she had been treated less favourably than a full-time teacher in the sociological studies department, who was paid for preparation time whereas she was not. She claimed that she was, therefore, being paid less than this other teacher or, alternatively, less than any hypothetical comparator on a university contract.
Claimants can use hypothetical comparators under discrimination legislation, but the EAT decided there had to be an actual comparator, not a hypothetical one, for part-time claimants to compare themselves to a comparable full-time worker under the part-time workers regulations.
The EAT said that the tribunal was right to decide that the employee could not use the full-time teacher in the sociological studies department as a comparator because, whilst both of them taught students, there were differences in what they taught, in their job specifications and in how they taught. The other teacher’s subject was both vocational and academic whereas Carl’s teaching was purely vocational. The other teacher had more academic qualifications. She had two MAs, was preparing for a PhD degree, and taught up to PhD level.
Implications for employers
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that part-time workers must not be treated less favourably than full-timers on the grounds that they work part time.
Comparable full-time workers are those who work for the employer under the same type of contract, and who are engaged in the same, or broadly similar, work and who have a similar level of qualification, skills and experience.
This decision is slightly advantageous to employers as it means that employees have to identify a real comparator.
Voss v Land Berlin | European Court of Justice | 6 December 2007
Issue: Part-time workers – overtime
An employer had a rule requiring staff to work over five hours' overtime a month before qualifying for overtime pay. The claimant in this case, a part-time teacher, was employed on a part-time contract for 23 hours a week and regularly worked extra hours above her contracted hours, but did not exceed the normal hours of a full-time teacher, which were 26.5 hours a week. She received less overtime pay than a full-time worker because of this, which was in line with German legislation permitting lower pay for overtime work which did not exceed normal hours. If her hours for any given week amounted to 26.5 hours or fewer, she would not earn as much as a full-time worker would earn for working the same hours.
She claimed this was detrimental to part-time workers and that she was not receiving equal pay compared to male teachers working the same extra hours.
The Advocate General, and then the ECJ, said that as there was no difference between work done during normal hours and during overtime hours, it was necessary to make an overall assessment of the pay received. A part-time teacher who normally worked 23 hours a week, but who worked 3.5 hours overtime, would be paid less than a full-time teacher who worked 26.5 hours.
This was a difference in treatment which the ECJ decided was potentially discriminatory and a breach of Article 141 on equal treatment. The national legislation was also contrary to Article 141 unless it could be objectively justified.
The case was referred back to the national court to determine whether there was objective justification in this particular case.
Implications for employers
This ECJ case is helpful as it analyses the issues surrounding part-time workers and overtime, and has potentially significant implications for employers that require their part-time workers to work overtime which is either unpaid, or is paid at less than the rate for normal working hours.
The EU legislation says that employers must provide equal pay for equal work. The hourly rate for part-time and full-time workers doing the same work should, therefore, be the same. However, part-timers may not be entitled to the same overtime rate as a full-time worker until they have worked the same number of hours that the full-time worker would be required to work before getting the overtime rate.
There is a legal argument that all part-timers should be paid for any overtime at the normal hourly rate until they have reached the normal working hours of an equivalent full-timer, unless the employer can objectively justify any differences in treatment.
Another ECJ case, Stadt Lengerich v Helmig (1995), appeared to reach a different decision. It held that there was no discrimination in not paying overtime rates to part-time workers when the hours they worked were within the normal hours worked by full-time workers. However, the more recent Voss case seems to be the safer decision.
McMenemy v Capita Business Services Ltd | Court of Session | 30 March 2007
IRLR 400, CS
Issue: Part-time workers – bank holidays
A researcher for a company that operated call centres wanted to change from full-time working Monday to Friday, to working only Wednesdays, Thursdays and Fridays, due to child care responsibilities.
The workplace operated seven days a week, so employees could work full time for five days a week and still not work on Mondays. There was a clear policy that did not allow employees, whether they were full- or part-time, the benefit of a Monday bank holiday if they did not work that day, and the employer's standard employment contract, for both full-time and part-time employees, provided that employees were only entitled to public holidays if they fell on the employee's normal working days.
Consequently, McMenemy was not allowed time off in lieu when public holidays fell on a Monday. He brought a claim in the employment tribunal under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, claiming that he was entitled to public holidays on a pro rata basis and had been treated less favourably than comparable full-time workers.
The Scottish Court of Session (agreeing with the EAT) held he had been treated less favourably, but this was not because he was a part-time worker. The difference in treatment was because he did not work on Mondays.
A full-time employee, who did not work Mondays, would not have been treated any differently. McMenemy was not entitled to time off or pay in lieu in respect of the bank holidays which always fell on a Monday.
Implications for employers
This is one of the few reported cases concerning the difficult issue of how to deal with bank and public holidays for part-timers, although the case does not set a general precedent as it depends on very specific facts.
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that employers cannot treat part-time workers less favourably than full-timers, unless the difference in treatment can be objectively justified. However, an employer that has a policy of only paying workers for statutory holidays which fall on their normal working days will not always discriminate against part-time workers.
The employer in this case operated on up to seven days a week. This meant that both part-time and full-time staff were denied Monday bank holidays if they did not work on Mondays.
Employers who operate on a Monday to Friday basis are more likely to discriminate over bank holidays because full-time workers will all be working on Mondays. Denying a part-time worker at such an establishment time off in lieu for a Monday bank holiday because they do not work that day is likely to be discrimination.
Probably the least risky course of action is to pro rata statutory bank holidays for part-time workers who do not work on every bank holiday, and this is what many employers do.
Matthews v Kent and Medway Towns Fire Authority and others | House of Lords | 8 March 2006
Issue: Part-time workers’ entitlement to full-time equivalent terms and conditions
This is one of the leading test cases on part-time work. It involved a total of 12,000 cases lodged on behalf of part-time retained firefighters. The group sought the same pension, sick pay and additional pay for additional responsibilities as their full-time colleagues. They argued that they were part-time workers for the purposes of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and claimed parity of terms and conditions with full-time firefighters. They alleged their employer breached the regulations by treating them less favourably than full-timers, in particular by denying them access to the firefighters' occupational pension scheme.
In essence, the employers argued that as the full-time firefighters did some extra tasks the work was not the same or broadly similar.
The employment tribunal, the EAT and in part the Court of Appeal, agreed that certain differences between the duties carried out by the full- and part-time groups meant that their work was not broadly similar. However, this effectively left many part-time workers with no means of claiming equality.
The House of Lords gave a final view on the matter and held that the part-time firefighters:
- did work under the same type of contract
- were employed in the same or broadly similar work.
Although there were differences between the contracts of the full-time and part-time firefighters, these were a function of the extra hours worked by full-timers, having regard to the different working patterns.
The part-timers could, therefore, use the regulations to claim parity of employment terms with full-time regular firefighters.
(Following the House of Lords decision, a new employment tribunal considered the case again in March 2008 and gave the part-time firefighters equal access to pension and sick pay, on a pro-rata basis with their full-time colleagues).
Implications for employers
This case made it considerably easier for part-time workers to claim equal treatment with their full-time colleagues. Although the decision related to the particular facts concerning the nature of the work undertaken by firefighters in this case, it should be taken into account by employers with part-time staff.
There are ramifications for sectors such as retail which employ significant numbers of part-timers.
Employers can attempt to defend similar claims on the basis that any different treatment is objectively justified. Employers may have some part-time workers who are not employed in the same or broadly similar work. However, employers must look at the facts of each case and decide if the work is broadly similar in nature, although obviously the part-time workers will undertake a smaller amount of the work each week.
If employees work under the same type of contract, the similarities in the jobs may mean they also do broadly similar work. This emphasis on the similarities rather than the differences is significant - part-timers may be able to bring claims even if their full-time comparators carry out some additional functions.
Employers should be careful not to exclude part-timers from pension and other benefits, otherwise they may face a claim for parity of terms and conditions.
Giles v Geach (t/a Cornelia Care Homes) | Employment Tribunal | 25 July 2005
Issue: Part time workers – indirect discrimination
A care home employed a part-time payroll clerk. When her workload increased, the employer demanded that she start working full-time. Her original agreement provided for a 16-hour per week contract.
The clerk suggested several options as an alternative to full-time working in the office including:
- sharing her job with another part-time payroll worker on a similar 16-hour per week contract
- increasing her hours but arranging them so that she was based partly in the office and partly at home.
The employer refused, demanding that she work a minimum of 25 hours a week in the office. This left her no other option but to resign. She brought an indirect sex discrimination claim.
The clerk won her claim and a total of nearly £30,000 compensation because she had been discriminated against. The tribunal dismissed the employer’s arguments that:
- the change to a full-time position was necessary due to the rapid growth of the company
- the care home would have little control over the clerk if she worked at home.
Her employer had imposed a provision, criterion or practice on her which would be to the detriment of a considerably higher proportion of women than men. She was awarded £19,495.85 in basic damages for indirect sex discrimination. This included an award of £5,000 for injury to feelings. The tribunal then increased the award by the 40% uplift (which was then available) because the employer ignored the grievance she filed, amounting to a further £7,798.34. The tribunal also awarded a further £2,000 of ‘aggravated’ damages for the way in which the employer had handled the case (by making unjustified allegations in an attempt to discredit the clerk during the litigation).
Implications for employers
Employers may ask employees to change their part -time role to a full-time one. However, employers cannot just force the change from part-time to full-time without agreement. It is up to the employee whether they wish to agree. Employers may try and retain a contractual right to insist on a return to full-time working but may face discrimination claims if they try to enforce this.
Many parents and carers may struggle to balance home and work arrangements if changes are proposed. A requirement for a woman to work full-time rather than part-time is often indirect sex discrimination, as more women than men have family responsibilities which makes full-time work more difficult. However, the requirement will not be discriminatory if employers can objectively justify the need to work full time.
Employers may be able to justify a requirement for full-time, rather than part-time hours, on the basis that the business is growing and a full-time team is needed. However, if there are any less discriminatory ways of achieving this, such as job shares, then there may still be successful indirect discrimination claims.
Employers who dismiss staff, or who insist on changes to working hours, may also face claims for:
- unfair dismissal, although two years’ continuity of employment is needed for this claim
- breach of contract (contracts normally specify particular hours of work, and these arrangements can normally only be changed by agreement)
- marital status discrimination (married men may be able to argue indirect marital discrimination, because more married people have childcare responsibilities than unmarried people)
- Breach of the right to request flexible working.
Marshall v Governors of Langtree Community Primary School | Employment Tribunal | 13 September 2000
Issue: Part-time workers - job share following maternity leave
A head teacher was told she could not job share after maternity leave. She had asked to job share after the birth of her fourth child, and had been head teacher for five years at a primary school with 80 pupils. She wanted to return to work three days a week, and suggested that a senior teacher at the school could be deputy acting head on the days she was not there.
The local education authority said the school had been found by Ofsted inspectors to have serious weaknesses, which had developed during her maternity leave. The governors insisted that she return to work five days a week because clear, unambiguous leadership was needed from a single post holder. She claimed sex discrimination, a claim supported by the National Association of Head Teachers.
The tribunal ruled in the head teacher’s favour, finding that the refusal of part-time working was sex discrimination. The tribunal recommended that the education authority and the governors should consult the head teacher within 28 days to find a solution which would enable her to return to the school on a part-time basis.
Implications for employers
This was a landmark early case, although only a tribunal-level decision so not binding on lower courts, showing that senior roles could be undertaken on a part-time basis.
Employer must take flexible working requests to work part-time seriously, perhaps testing out the proposed arrangement via a trial period.
Insisting an employee work full time could amount to indirect sex discrimination. Employers can attempt to justify indirect sex discrimination, but they need to have a good business reason with hard evidence that the role really needs one person five days a week. Trying to show why an alternative arrangement, such as a job share, would not work is challenging.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.