Commonly asked questions on the legal issues relating to temporary workers
The main statutory protection for part-time workers is contained in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). These Regulations implemented the provisions of the Part-time Work Directive (97/81/EC) into the UK.
Other legislation includes:
- Employment Protection (Part-time Employees) Regulations 1995 (SI 1995/31)
- Employment Rights Act 1996
- Employment Act 2002
- The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002 (SI 2002/2035)
- The Occupational Pension Schemes (Equal Treatment) (Amendment) Regulations 2005 (SI 2005/1923)
- The Work and Families Act 2006
- The sex discrimination provisions of the Equality Act 2010 because part-time workers may also be able to allege that they are being subjected to indirect sex discrimination and pay discrimination.
The numerous EC equal pay Directives implementing the principle that men and women should receive equal pay for equal work and Article 141 of the Treaty of Rome as amended may also be relied upon in appropriate cases.
Q: Who is a part-time worker?
A part-time worker is a person 'paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the ... employer under the same type of contract, is not identifiable as a full-time worker' (Regulation 2(1) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000).
In other words, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 apply to any worker who has entered an agreement to work for less hours than would normally be regarded as full-time hours for that employment. There is no requirement that a worker must work a minimum number of hours before getting protection.
These Regulations apply to workers, not just employees. A worker is essentially defined as a person being under a contract to personally perform work for another party to the contract (who is not a client or customer of the worker's profession or business).
Disputes often arise concerning whether individuals are workers or employees or self-employed. A recent example comes form the case of O'Brien v Ministry of Justice  UKSC 6 where the Employment Appeal Tribunal, the Court of Appeal, the Supreme Court, and the European Court of Justice all considered the matter, and it was eventually decided that part-time judges are ‘workers’ for the purposes of the 2000 regulations. As ‘workers’ they are entitled to the same pension, pro rata, as their full-time colleagues.
For more information on the distinction between employees and workers, see our Employee status Q&As.
Q: Do part-time employees need to serve the same amount of continuous service as full-time employees in order to qualify for statutory rights?
Part-time employees have the same rights as full-time employees for purposes of all the UK employment protection legislation and part-time employment counts for the purpose of calculating continuous employment.
Part-time employees still have to complete any relevant qualifying periods of service for particular rights as required by the legislation, but these are the same for part-time employees as they are for full-time employees.
Part-time employees accrue protection from being unfairly dismissed when they have been employed for one or two years depending upon whether their employment commenced before or after 6 April 2012. This means that if a part-time employee wants to bring a ‘normal’ unfair dismissal claim they will need two year’s continuous employment if their employment commenced on or after 6 April 2012.
However, if an employee is dismissed for asserting their rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, then the following consequences will apply:
- the dismissal will give rise to a claim of automatically unfair dismissal and
- the employee does not have to have completed one or two year's continuous service.
For more information about exemptions from the qualifying period, see our Unfair dismissal Q&As.
Q: Is there a right which means that employers must allow workers to work on a part-time basis and what claims can part-time workers bring?
Although a worker who works part-time has a right not to be discriminated against because of their part-time status, there is no statutory right which entitles full-time workers to move to working on a part-time basis.
It is best to consider workers who are seeking part-time working separately from those already working part-time.
Workers seeking part-time working
If an employer does not give adequate consideration to a request to start working part-time they may find that the worker could claim compensation for the following.
- Indirect sex discrimination under the Equality Act 2010, based on the grounds that the employer is applying an unjustified condition that a significantly higher proportion of women would find harder to comply with than men.
- Unfair dismissal which may be automatically unfair if resulting from an inadequate consideration of a request to work flexibly.
- Failure to consider their request for flexible working properly. Whilst no employee has a right to work part-time, qualifying employees have a right to request more flexible working arrangements. These arrangements may include part-time hours and employers have a duty to consider such requests properly. Remedies for failure to comply with the Flexible Working Regulations include both reconsideration of the application and compensation not exceeding eight weeks pay (subject to the statutory maximum). (The Regulations are to be amended so that, coming into force on 30 June 2014, the right to request flexible working will be extended to cover all employees with 26 weeks' service, not just those with children under the age of 17 (or 18 if the child is disabled) and certain carers of disabled, elderly or dependent adult relatives. The right to request flexible working will therefore apply to more employees from 30 June 2014 onwards. There will also be no statutory procedure for considering requests from this date, just a duty to consider all requests in a reasonable manner. For more details, including the extension of the right to request flexible working all employees, see our Requesting flexible working Q&As.
The above claims are open to both existing workers seeking to change to part-time roles or job applicants who apply for a full-time post but indicate during the interview that they would prefer to work part-time, or as part of a job-share arrangement.
For example, a female applicant who says in an interview that she cannot work full-time on account of collecting children from school may still claim indirect sex discrimination if she is not appointed, even though the employer advertised a full-time role. The employer would then have to show the refusal to appoint was a proportionate means of achieving a legitimate aim such as the effective performance of the job. Any insistence on full-time working is a criterion that discriminates indirectly against women and therefore has to be justified in this way. The fact a position is advertised as full-time or has previously been full-time will be insufficient to justify a refusal to agree to part-time working.
Workers already working part-time
If workers are already working part-time and are not offered the same terms and conditions as full timer workers, then the following claims may arise.
- Claims for less favourable treatment under the the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
- Indirect sex discrimination under the Equality Act 2010, if the terms and conditions of part-time female workers are worse than full-time workers who are mostly male.
- Unfair dismissal if the part-time worker ends up being actually or constructively dismissed.
- Equal pay claims under the Equality Act 2010 if a person is already working part-time and is paid less than a comparable full-time worker.
- Marriage and civil partnership or pregnancy and maternity claims under the Equality Act 2010.
A mere change of part-time hours may not always amount to indirect sex discrimination -see for example McMullen v PS Photay and Associates (unreported, ET/2329283/08 17 June 2009, ET).
There may also be claims made under EC law, including art 119 of the Treaty of Rome, which deals with equal treatment for men and women.
Q: Can an employer insist that part-time workers work full-time or increase their hours to meet the needs of the business?
No, employers cannot insist that part-time workers work full-time or increase their hours to meet the needs of the business. If a worker or an employee has a contractual arrangement that they work a specified number of hours, any unilateral attempt to change that arrangement by the employer will constitute a breach of contract by the employer. Such insistence by an employer may give rise to a claim for indirect sex discrimination, automatically unfair dismissal, breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 or contravention of the flexible working legislation.
Case law examples
Giles v Geach and another trading as Cornelia Care Homes (unreported, ET/3100720/05, 25 July 2005). 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, or
- 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 per week in the office. This left her no other option but to resign. She brought an indirect sex discrimination claim.
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'
- they would have little control over the clerk if she worked at home.
The clerk won a total of nearly £30,000 on the basis that she had been discriminated against. 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 £19,4955.85 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 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).
There are many other case law examples arising out of employer’s insistence on full–time working.
Thomas v The Arts Council of Wales (unreported, ET/1604301/08 17 June 2009, ET) The claimant asked to work part-time upon her return from maternity leave. The employer refused saying it needed the claimant to be available full-time so she claimed indirect sex discrimination which succeeded. Interestingly the tribunal found that:
- the delay which would be 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, and
- 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.
Although the need to provide a service full-time can be an objective justification and therefore a defence to an indirect sex discrimination claim this depends on the facts. To be objectively justified a requirement to work full-time must be a proportionate means of achieving a legitimate aim which corresponds to a real need on the part of the employer. Hard evidence is required to prove that the service really must be provided five days a week.
Rebekah Marshall v The Governors of Langtree Community Primary School (unreported, 2009, ET) A head teacher was told she could not job-share after maternity leave. The local education authority said the school had been found by Ofsted inspectors to have serious weaknesses. Therefore the governors' insisted that she return to work five days a week as clear, unambiguous leadership was needed by a single postholder. The tribunal found that this refusal was sex discrimination and 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.
McManus v The Chief Constable of Lincolnshire Police Force (unreported, ET/20600565/080 4 August 2009, ET) Part-time employees were required to work two Saturdays or Sundays per month. This was not indirect sex discrimination as the women could not show that weekend working put women at a particular disadvantage.
Fareham College Corporation v Walters  IRLR 991, EAT In this disability discrimination case one of the many issues was that a lecturer in computing wanted to return to her job on reduced hours once she recovered from an illness. The employer also argued that managing part-time staff was difficult, but no evidence was produced as to why the claimant could not work part-time. There were already part-time staff working at the college.
Q: What is the impact of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 for employers who engage part-time workers?
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 are essentially a piece of anti-discrimination legislation. The regulations provide that a part-time worker has the right not to be treated less favourably than the employer treats a comparable full-time worker. Basically the part-time employee has the right to receive the same benefits, pro rata, as a comparable full-time employee. Most benefits can be applied on a pro rata basis; if it is not possible then the employer will have to be able to objectively justify the exclusion of the part-time worker. Just because a benefit cannot be applied on a pro rata basis does not automatically provide such objective justification.
The employer will have to show other reasons, for example, a disproportionate cost to the business. The size and resources of the organisation will be relevant factors to take into account.
Q: When a part-time worker claims they should be compared to a full-time worker and the employer does not agree that they undertake comparable work how is this decided?
Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a worker will only be treated as comparable to a full-time worker if they:
- are engaged 'under the same type of contract' as the relevant comparator - Regulation 2(3) and
- if both are engaged 'in same or broadly similar work' with regard to skills, qualifications and experience - Regulation 2(4).
For part time workers to bring a claim for less favourable treatment on the grounds of their part time status, they must identify a full time comparator who does the same or broadly similar work. Problems can arise where the part time worker does a high proportion of the work done by the full time employee, but there are some differences, the employer may wish to argue the full timer is not a valid comparator.
Case law examples
In March 2006 one of the first important cases under the Regulations reached the House of Lords - Matthews and others v Kent and Medway Towns Fire Authority and others  ICR 365. A total of 12,000 cases were lodged on behalf of the part-time retained fire fighters who 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 Regulations and claimed parity of terms and conditions with full-time fire-fighters. In essence the employers argued that as the full-time fire fighters did some extra tasks the work was not the same or broadly similar. The House of Lords held that the part-time fire-fighters:
- did work under the same type of contract and
- 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 fire-fighters. (Following the House of Lords decision, a new employment tribunal considered the case again in March 2008 and gave the part-time fire-fighters equal access to pension and sick pay, on a pro-rata basis with their full-time colleagues).
However, it should be emphasised that this decision related to the peculiar facts concerning the nature of the work undertaken by fire-fighters in this case. Some part-time workers may not be employed in the same or broadly similar work. 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.
In a similar case, Moultrie and others v Ministry of Justice (unreported, UKEAT/0239/14 16 January 2015, EAT), the claimants were members of various medical tribunals. They spent 100% of their 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. However, the Employment Appeal Tribunal found that the other 15% of the full-time members' time was spent doing appraisals, recruitment, 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 and the fee paid members could not further pursue their claim for less favourable treatment on the grounds of their part-time status and the employer was not forced to show whether the failure to provide the pension was objectively justified.
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 be as treating part-timers less favourably than full-timers doing broadly similar work can trigger a claim.
A further case confirmed that a hypothetical full- time comparator is not permissible in cases in which a part-time worker claims he or she is being treated less favourably - Carl v University of Sheffield  ICR 1286, EAT.
More recently in the Scottish case of Advocate General for Scotland v Barton (unreported,  CSIH 92 15 December 2015, CS) a part-time clerk to the Commissioners of Income Tax retired in 2009. Under the Scottish Taxes Management Act 1970 (TMA) the Secretary of State for Scotland and the Lord Chancellor had a discretionary power to award a pension to a ‘full-time clerk’. As the clerk did not get a pension at all he argued that he had received less favourable treatment, choosing as his comparator another part-time clerk who had retired in 2001. He relied on the provisions of the Part- time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and Article 141 of the Treaty of Rome and the Equal Pay Directive 75/117.
The Court of Session held that the clerk had failed to show that his treatment was less favourable than a proper full-time actual comparator and that the TMA clearly said 'full-time' The TMA could not be rewritten to omit these words. The proposed rewriting of the statute would distort a piece of primary domestic legislation.
This case is an important contribution concerning the correct choice of comparators, but also, importantly, it questioned the way of interpreting statutory provisions. Whether giving effect to EU Directives (the Marleasing principle) can in fact extend to the deletion of a key provision of UK legislation. This decision stands in contrast to the Employment Appeal Tribunal decision in the Bear Scotland case concerning commission and holiday pay etc which effectively rewrote a UK statute and therefore gives some support to those seeking to argue that Bear Scotland was wrongly decided.
For information on the Bear Scotland case see the Q&A Should employers take commission, overtime, bonuses and extra allowances into account when calculating holiday pay? in our Annual leave and holiday pay Q&As.
Q: Can an employer ever defend treating a part-time worker less favourably?
Yes, an employer can defend treating a part-time worker less favourably if the employer can objectively justify the treatment. Such justification involves balancing the needs of the business against the effect on workers and establishing that the treatment is a proportionate means of achieving a legitimate business aim. This is the same concept as in other discrimination claims.
A part-time worker who brings a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (The Regulations) will identify a full-time worker who they feel is being treated more favourably. That comparator must be employed under the same type of contract and be engaged in the same or broadly similar work. Once less favourable treatment is established, it is then open to the employer to try to objectively justify that treatment. Some examples of employers' attempted defences include the following cases.
Case law examples
Dorset County Council v Omenaca-Labarta (unreported, EAT/0092/08/DA 13 October 2008, EAT)
In this case the Employment Appeal Tribunal (EAT) indicated that the fixed-term nature of a supply teacher’s position could be a factor justifying less favourable treatment of part-timers. Although on the facts of this case the teacher’s right not to be treated less favourably had been infringed anyway and was not justified.
Other attempts to defend part-time workers' claims have concerned whether part-time status has to be the sole reason why a worker is treated less favourably to enable the claim under the Regulations. There are conflicting case law decisions on this issue. The leading cases are as follows:
Gibson v The Scottish Ambulance Service (unreported EATS/0052/04 16 December 2004, EATS)
The EAT in Scotland previously decided that a worker had not been subjected to a detriment on the ground of his part-time status because part-time status was not the ‘sole reason’ for the treatment complained of. This was to the advantage of employers who had treated employees less favourable for a number of reasons with part-time status being only one of the reasons.
Sharma and others v Manchester City Council  IRLR 336, EAT and Carl v University of Sheffield  ICR 1286, EAT
The EAT in England held that part-time status need not be the sole reason for less favourable treatment. If a part-timer is treated less favourably than a comparable full-timer, and being part time is one of the reasons for that less favourable treatment, that is enough to attract the protection of the Regulations. These cases make it easier for workers to establish unlawful less favourable treatment and does seem more in line with other forms of discrimination.
From a practical point of view employers should avoid treating part-time workers less favourably at all, then it will not matter if they have been treated badly ’ solely because they are part–time’ or for a number of reasons. However, employers who are faced with a claim may attempt to rely on the Scottish decision and argue that part-time status was not the ‘sole reason’ for the treatment complained of.
Q: How much holiday including bank holidays are part-time workers entitled to?
The position concerning holidays, bank holidays and part-time workers can be complicated.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 give the part-time worker the basic right not to be treated any less favourably than a comparable full-time worker. This means that a part-time worker is entitled to the same paid holidays on a pro rata basis as a full-time worker. This includes entitlement to bank holidays.
Under the Working Time Regulations 1998 as amended, a part-time worker also enjoys the right to the 28 days pro rata (5.6 weeks) paid annual leave.
For further information concerning statutory minimum annual leave see the Q&A on the minimum amount of annual leave which an employer must provide to all workers in our Working Time Regulations Q&As.
Bank holidays are not additional to the statutory paid annual leave under the Working Time Regulations, although some employers do give these days as additional leave. If the employer includes bank holidays in the statutory paid annual leave under the Working Time Regulations 1998 it is less likely there will be any problems with part-time workers entitlement. However, if full-time workers get bank holidays in addition to their statutory paid annual leave, difficulties may arise.
Assuming that full-time workers in an organisation are entitled to 28 days basic annual paid leave plus paid bank holidays, then the part-time workers are entitled the same proportion of leave based on their normal weekly working hours.
For example if the part-time workers work three days a week their basic annual leave entitlement will be 16.8 days paid leave per year, but what about bank holidays?
If the part-time workers do not work on the days on which bank holidays fall, they will be getting less paid holiday than the full-time workers. Conversely if they do work on the days when lots of bank holidays fall (for example Mondays) they may get more paid holiday than the full-time workers. There are basically four possible approaches to resolving this.
Let the part-time workers take all eight bank holidays regardless of the days of the week they work. If they don't work on days that the bank holidays fall, they get given credit, often in the same week. So a 'Tuesday-to-Friday' four-day-worker would have the Tuesday of a bank holiday week off instead of the Monday. In some organisations this may provoke complaints from full-time staff.
Don't give part-time workers any at all. There is no statutory right to bank holidays. However, not allowing part-time workers to take bank holidays would be very high risk of a claim under the Regulations, or a claim of indirect sex discrimination on the basis that the requirement to work full-time is a condition which is more difficult for the majority of women to comply with than men if they are given to full-time workers.
Provide paid leave on bank holidays when the holiday falls on their normal working day, but not if it does not. This may advantage those who work on Mondays and disadvantage those who do not.
Pro rata the bank holiday leave across the year. For example, a part-time worker who works three out of five days should therefore be entitled to receive three fifths of the bank holiday entitlement. This is the approach previously recommended by the Department for Business, Enterprise and Regulatory Reform.
If the pro rata approach is taken, the calculation can be made on days or hourly basis.
For example, for an employee entitled to eight bank holidays a year:
Days - three fifths of eight days bank holidays is 4.8 days.
Hourly - if a full-time employee works a five-day week of 7.5 hours per day then:
- a full-time employee (working a total of 37.5 hours per week) would be entitled to 60 hours annual leave on bank holidays (that is 8 bank holidays x 7.5 hours)
- a part-time employee working a three-day week of 22.5 hours would therefore be entitled to a pro rata bank holiday allowance of 36 hours (22.5 ÷ 37.5 x 60). (This would also be 4.8 days which is four days and six hours for an employee working 7.5 hour days).
For more on legal issues surrounding back holidays and public holidays, see our Bank holidays FAQs.
Case law example
In McMenemy v Capita Business Services Ltd  IRLR 400, CS, one of the few reported cases concerning bank holidays, the Scottish Court of Session (agreeing with the EAT) held that a part-time worker who never worked Mondays was not entitled to time off or pay in lieu in respect of those Bank Holidays which always fell on a Monday. However this case does not set a general precedent. The worker and the full-time workers’ contracts all provided that they were entitled to take public holidays only when they fell on a normal working day. Although this part-time worker did suffer detrimental treatment, in this case it was because he worked Wednesday to Friday and had agreed not to work on Mondays. The cause of the difference in treatment was the fact that the employee did not work on Mondays and not solely because he worked part-time.
This case shows that an employer's policy of only paying workers for statutory holidays which fall on their normal working days is not always discriminatory against part-time workers. However employers should be very careful as this employer operated on a six or seven day a week basis. Therefore both part-time and full-time workers were denied time off if they did not work on Mondays. Employers who operate on a Monday to Friday basis may discriminate as full-time workers will all be working on Mondays, therefore if a part-time worker (who does not work Mondays) is denied time off in lieu of Monday bank holidays, there is likely to be discrimination.
Q: Can a part-time worker ever be safely selected for redundancy?
Yes, if the correct approach is taken. This would include the usual redundancy stages including consideration of all workers in the pool for selection and following a fair process for selection and scoring all such potential candidates against suitable objective criteria.
If the part-time worker is selected after such a process, then if a claim is brought the employer would be in a better position to justify the selection objectively.
If the sole reason for selection and redundancy dismissal is that the worker is a part-time worker, then this would constitute:
- less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
- unfair dismissal and
- indirect sex discrimination.
If part-time workers are selected for redundancy, particular care must be taken to calculate their redundancy payments correctly.
Statutory redundancy payments are based on a week's pay, the employee's age and the number of years of continuous employment, subject to a statutory maximum. The number of calendar years of employment are counted in the same way for full-time or part-time employees.
The amount of a week's pay is the amount that is payable for the employee’s normal hours of work. If hours and pay vary, the employer may need to work out the employee’s average hourly rate over a 12-week period including overtime and bonuses. If an employee has recently agreed to work part-time permanently, and this was a contractual change before the redundancy, then their ‘normal’ working hours are the new part-time hours and the redundancy payment can be calculated on the reduced part-time salary.
A case example from 2009 which showed part-time workers entitlement to redundancy payments was that in which over 1,000 soldiers won a part-time workers claim against the Ministry of Defence. Full-time soldiers had been awarded redundancy payments and pensions, whereas the part-time soldiers only received special one-off payments of £14,000 each when their regiment was disbanded. The press reported that the claimants received between £1,500 and £50,000 each, based on past earnings and length of service, producing a total £6.7m settlement.
Q: Do employers have to pay full overtime rates to part-time workers when the hours they work are within the normal hours worked by full-time workers?
The allocation of overtime and pay for that work can be complex where part-time workers are involved.
The starting point is that under the Part-time Workers (Prevention Of Less Favourable Treatment) Regulations 2000 part-time workers are not treated less favourably just because they are not paid overtime rates at all for work done within the normal hours worked by full-time workers (Regulation 5(4)). However the law relating to sex discrimination under the Equality Act 2010 may provide protection for part-time workers who are treated less favourably with regards to overtime payments.
In the light of some developments in the European Court of Justice it may be that the UK regulations need expanding and clarifying. Employers who require workers to work periods of unpaid overtime should be very careful. If part-time workers are paid the same hourly rate as full-time workers, unpaid overtime would mean the part-time worker is paid less than the full time worker would earn pro-rata for the same hours.
Key points for employers to bear in mind are:
- It may be sex discrimination and a breach of equal pay protection not to pay full overtime rates to part-time workers when the hours they work are within the normal hours worked by full-time workers.
- Women part time workers may be able to claim sex discrimination if more overtime is given to full-time workers who are mostly men.
Part-time employees have made use of EU laws to pursue equal rights with full-time employees on the basis that statistically more part time workers are female.
In Voss v Land Berlin (unreported Case C-300/06 6 December 2007, ECJ) 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 per week, whereas a full-time teacher worked 26.5 hours per week. The claimant regularly worked extra hours above her contracted hours, but she did not exceed the normal hours of a full-time worker. She therefore received less overtime pay than a full-time worker. This was in line with German legislation which permitted lower pay for overtime work which did not exceed normal hours. If her hours for any given week equalled 26.5 hours or less, she would not earn as much as a full-time worker would earn in respect of the same working hours. She claimed that 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 ECJ decided that this was potentially discriminatory and a breach of Article 141 and was not objectively justified.
So for example, a full-time worker only gets a higher overtime rate once they have worked 40 hours and the employer only pays the higher overtime rate to the part-time workers when they have also worked more than 40 hours in a week. Unless the employer can justify the difference in pay, the Voss case suggests that employers especially those in the public sector would be well advised to consider paying part-time workers the same overtime rates as full-time workers once they exceed their normal hours.
However in Stadt Lengerich v Helmig  IRLR 216, ECJ there appeared to be a different decision because it was 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.
It is clear that employers must take great care when allocating overtime and fixing rates of pay for overtime between full-time and part-time workers. Employers may be vulnerable to claims under the Equality Act 2010 (or claims under EU law in extreme cases).
Q: Are any future developments expected in the area of part-time workers?
The main developments in the area of part-time work are likely to result from case law on the application of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Possible legislative developments may also result from any action relating to Brexit. These are dealt with under separate headings below.
A comparatively small number of cases on the Regulations have been reported to date. This number seems to be decreasing even further following the introduction of tribunal fees in July 2013, although part-time workers claims rose 144% in the final quarter of 2015 according to the Tribunal statistics quarterly: January to March 2016.
An issue which affects some part-time workers is the controversy surrounding the use of zero-hours contracts. For further information see the Q&A What are zero hours contracts and what issues should employers who use these contracts be aware of? in our Terms and conditions of employment Q&As.
As some of the rules requiring part-time workers to be treated equally are EU derived it is possible that a departure from the EU may lead to a removal of some protection for part-time workers.
Many commentators state that the rights enjoyed by part-time and agency workers in particular are at substantial risk following a departure from the EU. However, removing part-time workers’ rights would not be popular and sex discrimination, unfair dismissal, and equal pay laws are intertwined with protection for part-timers so it would be legally difficult to remove protection for part-time workers in isolation.
For those part-time workers engaged through an agency, currently agency workers after 12 weeks in the job qualify for the same rights as those employed directly. As this piece of legislation is based on EU law and is relatively self-contained and easy to repeal this may be a future development which will affect some part-time workers.
For information on what Brexit will possibly mean for employment law generally read the blog by our Public Policy Advisor (Employer Relations).
We have also created a Brexit hub on our website.
Explore our related content
Commonly asked questions on the legal issues relating to fixed-term work
Commonly asked questions on the legal issues relating to employment status
Selected cases reported on disputed employment status.