Commonly asked questions on the legal issues relating to temporary and agency workers
The main statutory protection for part-time workers is contained in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000).
Other legislation includes:
- The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002 (SI 2002/2035)
- The Equality Act 2010
- The Employment Rights Act 1996
- The Work and Families Act 2006.
The sex discrimination and equal pay provisions of the Equality Act 2010 are sometimes applicable to part-time workers, who may be able to allege that they are being subjected to indirect sex discrimination and/or pay discrimination. This legislation has been relied on for successful pay and pension claims by groups of female part-time workers.
Article 141 of the EU Treaty of Rome gives men and women the right to equal pay for work of equal value and EU Directives requiring men and women to receive equal pay for equal work have had some influence in UK cases not fully covered by domestic legislation.
Because some of the rules requiring part-time workers to be treated equally are EU-derived, there is a risk that the rights of part-time and agency workers may be diluted following the UK’s 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 the situation is different. Currently agency workers qualify for the same rights as those employed directly after 12 weeks in the job. As this piece of legislation is based on EU law, and is relatively self-contained, it is easier to repeal, so part-time workers in this situation may be affected sooner than those that are directly employed.
For more on agency workers, see our Temporary and agency workers Q&As.
For information on what Brexit could mean for employment law generally, go to our Brexit hub.
These Q&As should be read alongside our Case law on part-time workers.
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The Part-Time Workers Regulations are essentially anti-discrimination legislation. They apply to workers who apply for a part-time role from the outset and to those who switch to working part-time.
A part-time worker has the right not to be treated less favourably than a comparable full-time worker, so employers must give part-time workers the same terms and conditions as those working full time, unless they can justify not doing so.
The rules give part-time workers the right to receive the same treatment as a comparable full-time worker for:
- pay (including sick pay, maternity, paternity and adoption leave and pay, bonuses and commission)
- holidays and holiday pay
- access to pension schemes
- training and career development
- promotion and transfer
- selection for redundancy
- opportunities for career breaks.
Organisations can take a pro-rata approach, and provide a proportion of the full-time benefits in relation to the actual number of hours worked (see British Airways v Pinaud (2017) where it was found that proportionally the part time employee was required to be available for more of her days than the full time employee and so proportionally received less pay.)
If equality is not possible, then the employer must be able to objectively justify its different treatment of the part-time worker. An employer saying it thinks a benefit cannot be applied on a pro rata basis does not automatically provide objective justification. Tribunals will consider the size and resources of the organisation as relevant factors. For example, it may be possible to deny a part-time worker health insurance available to full-time counterparts if the cost of providing the benefit is disproportionate, but employers should not rely solely on costs as a justification defence if no other factors are present as well.
Other rights provided by the Regulations are:
- The right to request a written statement giving reasons for any (alleged) less favourable treatment than a full-time comparator.
- The right not to be victimised (in other words, treated to a detriment or dismissed) because they have raised or exercised rights as a part time worker.
Those working part-time who do not receive the same terms and conditions may be able to claim less favourable treatment under the regulations. Other possible claims include 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. If the part-time worker ends up being actually or constructively dismissed, they may also be able to claim unfair dismissal, as well as other discrimination claims under the Act, depending on the facts (see Possible claims below for more on this subject).
Defining part-time workers
A part-time worker is someone who works fewer hours than a full-time worker. There is no specific number of hours that makes someone full or part-time, but a full-time worker will usually work 35 hours or more a week.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 apply to any worker who has entered into an agreement to work for fewer 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.
Employees and workers
Individuals who work part-time are entitled to different protections depending on their employment status and which legislation is involved. For example, while rights under the Part-time Workers Regulations apply to both workers and employees, some other rights, such as the right to be protected against unfair dismissal under the Employment Rights Act 1996, apply only to employees, not workers.
For the purpose of the Part Time Workers Regulations, it is important for some types of claims to distinguish between who is a worker in law and who is an employee. An individual who works part-time will have to establish that they are an employee (albeit one who works on a part-time basis) in order to obtain the fullest range of protections available. However, a range of protections is available to those who only meet the definition of ‘worker’.
A worker is essentially defined as a person who is under a contract to perform work personally for another party to the contract that is not a client or customer of the worker's profession or business (a party that was a client or customer would imply self-employment). The regulations include temporary and agency workers.
Disputes often arise over whether individuals are workers, or employees, or self-employed. Workers generally have fewer rights than employees, who can take advantage of rights granted to workers as well as those for employees.
For more information on the distinction between employees and workers, see our Employee status Q&As.
An individual who works fewer hours is not necessarily entitled to fewer rights than full-time employees. Part-time employees have the same statutory employment rights as other employees. Employers need to look at each working relationship to decide the individual’s employment status. A person who works part time will often hold a permanent position and be entitled to the same terms and conditions as their full-time counterparts.
Their contract terms will include, for example, a comparable right to:
- pay, bonuses and shift allowances
- access to pension schemes
- contractual sick pay
- family leave rights.
Workers who do not qualify to make unfair dismissal claims under the Employment Rights Act 1996 because they do not have employee status, have the right with no qualifying period to claim they have been treated to a detriment (which includes a dismissal) under Regulation 7 of the Part-Time Workers Regulations.
Possible claims for part-timers
Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part timers can bring claims for:
- Less favourable treatment
- Detrimental treatment (including dismissal) for raising or exercising rights as a part time worker under the Regulations.
Under other statutes, part-timers can claim:
- Unfair dismissal, if the part-timer is also an employee, meets the qualifying criteria, and is actually or constructively dismissed (see our Unfair dismissal Q&As).
- Automatically unfair dismissal (under various statutes).
- Equal pay under the Equality Act 2010.
- Indirect sex discrimination under the Equality Act 2010.
- Marriage and civil partnership or pregnancy and maternity discrimination claims under the Equality Act 2010.
- Failure to consider a request for flexible working (see our Requesting flexible working Q&As).
Successful claims under the Part-Time Workers Regulations may result in:
- A declaration as to the rights of the part time worker
- A recommendation to ensure disparity is removed for the part time worker
- Compensation that is just and equitable in the circumstances (which will usually relate to underpayments made to the part timer)
Note that there is no compensation available for injury to feelings under the Part-Time Workers Regulations.
The Part-Time Workers Regulations allow for ‘objective justification’ as a defence to less favourable treatment of a part time worker.
An example comes from the case of O'Brien v Ministry of Justice (2013) 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 were ‘workers’ for the purposes of the 2000 regulations. As ‘workers’ they are entitled to the same pension, pro rata, as their full-time colleagues.
In the O’Brien case, the courts outlined how ‘objective justification’ may work. The justification defence can be raised both at the time the less favourable treatment is complained of and at a later date, where there is a further reason for the treatment that is relevant. The reason for the differential treatment must be:
- related to a legitimate aim (usually referred to as a ‘sound business reason’)
- shown to have been carefully thought through
- one that it is reasonably necessary to rely on.
Cost alone (for example saving money in providing fewer benefits to part timers) will not succeed as a justification defence.
When a part-time worker claims they should be compared to a full-time worker, how does the employer decide if the work is comparable?
Under the Part-time Workers Regulations, a part-time worker who brings a claim for less favourable treatment must identify a full-time comparator who:
- is paid by reference to time worked
- is doing the same or broadly similar work
- is employed under the same type of contract
- has similar skills, qualification and experience
- is employed at the same establishment or, if there are no full-time workers at that establishment, at a different one where there is a comparator.
It is not possible to rely on a hypothetical comparator.
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
One of the first important cases under the regulations is Matthews v Kent and Medway Towns Fire Authority (2006). This involved 12,000 part-time retained fire fighters claiming they were entitled to the same pension, sick pay, and additional pay for additional responsibilities, as their full-time colleagues. Although there were differences between the full- and part-time firefighters’ contracts, the other tasks undertaken by the full-timers were due to the extra hours they worked. The House of Lords decided the part-timers were entitled to equal access to pension and sick pay, on a pro-rata basis.
A similar case, Moultrie v Ministry of Justice (2015), reached the opposite conclusion. The EAT found that 15% of the full-time medical tribunal members' time was spent doing work of such importance that it could not be compared to the part-time fee-paid members’ work in their claim for less favourable treatment on the grounds of their part-time status. The case shows that even if a high proportion of the work done by a full-time employee is the same as a part-time employee, they may not be a valid comparator.
In Roddis v Sheffield Hallam University (2017), the EAT held a part-time lecturer engaged under a zero-hours contract could compare himself to a full-time permanent employee, for the purposes of establishing a part-time worker’s claim. The university argued that because he was an associate lecturer working under a zero hours contract he could not compare himself to a full time academic lecturer. The Supreme Court said it should be quite possible for an employee on a zero hours contract to compare themselves to a full time employee doing the same or broadly similar work.
A further case, Carl v University of Sheffield (2009), confirmed that a hypothetical full-time comparator is not permissible in cases where a part-time worker claims he or she is being treated less favourably.
In the Scottish case, Advocate General for Scotland v Barton (2015), a part-time clerk who claimed he was entitled to a pension lost his case. He chose as his comparator another part-time clerk who worked longer hours and who had received a pension. This was not a full-time comparator as required by the legislation.
Can an employer ever defend treating a part-time worker less favourably?
An employer can defend treating a part-time worker less favourably if it can objectively justify the treatment. As outlined in the O’Brien case (see Possible claims above), justification involves balancing the needs of the business against the discriminatory effect on the worker 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.
Under the Part-Time Workers Regulations, once the part-time worker has shown they have suffered less favourable treatment than a full-time comparator, it is open to the employer to try to objectively justify that treatment.
Case law examples
In Dorset County Council v Omenaca-Labarta (2008), the 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, the teacher had been treated less favourably and the treatment was not justified.
Other attempts to defend part-time workers' claims have concerned whether part-time status has to be the sole reason for a worker being treated less favourably in order for the claim to succeed.
There are conflicting case law decisions on this issue. In Gibson v Scottish Ambulance Service (2004), the EAT in Scotland decided that a worker had not been treated detrimentally because of his part-time status, since part-time status was not the ‘sole reason’ for the treatment complained of. This decision gave an advantage to employers that had treated employees less favourably for a number of reasons, but where part-time status was only one of them.
The following cases make it easier for workers to establish less favourable treatment and bring part-time workers’ protection more in to line with other forms of discrimination.
In Sharma v Manchester City Council (2008) and Carl v University of Sheffield (2009), both later cases than Gibson, the EAT held that part-time status need not be the sole reason for less favourable treatment in order for a less favourable treatment claim to succeed. If a part-timer is treated less favourably than a comparable full-timer and being part time is only one of the reasons for that less favourable treatment, that is enough for the regulations to apply.
From a practical point of view, employers should avoid treating part-time workers less favourably on any grounds at all. Then it will make no difference if they have been treated badly solely because they are part time or for a number of reasons.
Do part-time employees need to serve the same continuous service as full-time employees in order to be protected?
Part-time employees have the same rights as full-time employees under the UK’s employment protection legislation, and part-time employment counts for the purpose of calculating continuous employment. In order to gain protection from unfair dismissal, part-timers have to show they have employee status (albeit it on a part-time basis).
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, therefore, accrue protection from being unfairly dismissed when they have been employed for two years continuously. (If their employment commenced before 6 April 2012, they only needed one year’s continuous employment).
If they have 23 months and three weeks’ service they can count the final week if they are dismissed in that week as they are entitled to statutory notice of one week. The following is an example of how this works.
A part-time business analyst works three days per week. The contract contained a commencement date of 1 August, so she will reach two years’ continuous employment on 31 July two years later. If the employer dismisses her on 31 July, she will qualify for basic unfair dismissal rights. In fact, she will probably still obtain her unfair dismissal rights if the employer attempted to dismiss her on 24 July. This is because she can add on the relevant statutory notice period if the employer attempted to terminate her employment during the week before the two years’ continuous employment would accrue.
If an employee is dismissed because they are a part-timer, or because they have asserted their rights under the Part-time Workers Regulations, the two years’ continuous employment is not needed. The dismissal will give rise to a claim of automatic unfair dismissal and the employee does not have to have completed any period of qualifying service.
The right for employees to claim automatic unfair dismissal for this reason does not arise in the Part-Time Workers Regulations but in the Employment Rights Act 1996, as it is a category of automatic unfair dismissal (dismissal for asserting a statutory right). The claim however is for the same reason.
For more information about exemptions from the qualifying period, see our Unfair dismissal Q&As.
Must employers allow full-time workers to work on a part-time basis?
A part-time worker has the right not to be discriminated against because of their part-time status, but there is no statutory right entitling full-time workers to move to working on a part-time basis.
If an employer does not give adequate consideration to a request to start working part-time, it may find the worker could claim compensation on many grounds.
Take, for example, an experienced computer network analyst, employed full time by a bank for over eight years, with special responsibility for the security of customer accounts. Following the birth of her first child, she wants to drop down from a five-day-week to a three-day week. She suspects that her boss will not be receptive to the suggestion.
Flexible working requests
Whilst no employee has the right to change to part-time working, the analyst does have the right to request more flexible working arrangements, which may include part-time hours, and the employer has a duty to consider her requests properly. As long as the employer seriously considers the part time working request, and can justify any refusal with prescribed business reasons, then the flexible working request can be legitimately refused. However, the employer could then be vulnerable to a claim of indirect sex discrimination (see below).
Remedies for failure to comply with the Flexible Working Regulations 2014 include both reconsideration of the application and compensation not exceeding eight weeks’ pay (subject to the statutory maximum). The regulations apply to all employees with 26 weeks' service, not just those with children or who are carers of disabled, elderly or dependent adult relatives. There is no statutory procedure for considering requests, just a duty to consider all requests in a reasonable manner.
For more details see our Requesting flexible working Q&As.
The business analyst in our example may also have the following claims.
Indirect sex discrimination
If her employer insists she continues in a full-time role, and this is an unjustified condition that a significantly higher proportion of women would find harder to comply with than men, then she may be able to claim indirect sex discrimination. These claims can be based on the fact that statistically the majority of carers for children are female. These claims may be 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, because she has to collect her 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.
If the analyst is dismissed, this may be automatically unfair and/or a discriminatory dismissal if it results from the employer’s inadequate consideration of her request to work part time.
Can an employer insist part-time workers work full-time or increase their hours to meet business needs?
If a worker or employee has a contractual arrangement to work a specified number of hours, any unilateral attempt by the employer to change that arrangement will constitute a breach of contract. So, employers cannot insist that part-time workers work full-time, or increase their hours, to meet the needs of the business.
The breach of contract claim can be made by an employee by way of a claim of constructive dismissal. This requires the employee to resign in response to the employer’s fundamental breach of contract and assert that this amounts to an unfair constructive dismissal. Any insistence by an employer on such a change may also give rise to a claim for indirect sex discrimination, automatic unfair dismissal, contravention of the flexible working legislation or receiving detrimental treatment as a worker under the Part-time Workers Regulations.
Case law examples
In Giles v Geach (t/a Cornelia Care Homes, 2005), a part-time payroll clerk in a care home won over £30,000 compensation in a successful discrimination claim. When her workload increased, the employer had demanded she work full time, rather than the 16 hours a week agreed in her contract. The employer refused all suggested alternatives to full-time working, including job sharing and being based partly at home. The 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, which was indirect sex discrimination.
There are many other case law examples of discrimination, including sex and disability discrimination, arising out of employers’ insistence on full-time working.
In Thomas v Arts Council of Wales (2009), an employee won an indirect sex discrimination claim when her employer refused her request to work part-time on her return from maternity leave. She had also claimed constructive unfair dismissal but the employment tribunal found that she did not resign in response to the way that the employer had dealt with her flexible working request, so only the sex discrimination claim succeeded.
In Marshall v Governors of Langtree Community Primary School (2000), a head teacher, who was told she could not job-share after maternity leave, established that this was sex discrimination. The tribunal recommended that the employer should consult with the head teacher within 28 days to find a solution which would enable her to return to the school on a part-time basis.
In McManus v Chief Constable of Lincolnshire Police Force (2009), 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 compared with male employees. Weekend working may trigger religious discrimination claims, though.
One of the many issues in Fareham College Corporation v Walters (2009), a disability discrimination case, was that a lecturer in computing wanted to return to her job on reduced hours after an illness. The employer accepted that she was disabled and argued that managing part-time staff was difficult but produced no evidence as to why the claimant could not work part-time, and there were already part-time staff working at the college. The EAT found that the refusal to allow her to return to work in a phased way was a criterion causing her a substantial disadvantage and that the college had failed to address their duty to make reasonable adjustments and discriminated against her as a disabled employee.
A mere change of the configuration of part-time hours may not always amount to indirect sex discrimination, but discouraging an employee from applying to leave work before 5pm to cover their childcare responsibilities may be (see Fidessa plc v Lancaster, 2017).
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 Regulations give part-time workers the basic right not to be treated 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, including bank holidays.
Under the Working Time Regulations 1998, a part-time worker also has the right to a proportion of the 5.6 weeks’ paid annual leave (28 days) due to 5-day week workers, pro-rated to fit the number of hours they work (for more information on statutory annual leave, see our Working time regulations Q&As).
Bank holidays are not in addition to the statutory paid annual leave entitlement under the working time regulations, although some employers choose to give these days as additional leave. If an employer includes bank holidays in the 5.6 weeks’ statutory paid annual leave, there are likely to be fewer 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 if they work a 5-day week, 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 part-time workers work three days a week, they will be entitled to 16.8 days’ paid leave per year. But what about bank holidays? If part-time workers don’t 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 Mondays, the day on which most bank holidays fall, they may get more paid holiday than full-time workers.
There are basically four possible approaches to resolving this.
1. Allow the part-time workers to take all eight bank holidays, regardless of the days of the week they work. If they don't work on days on which the bank holidays fall, give them the equivalent time off, perhaps in the same week. So a Tuesday to Friday, 4-day week, 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.
2. Don't give part-time workers any bank holidays at all. There is no statutory right to bank holidays. However, not allowing part-time workers to take bank holidays would be risk a claim under the regulations, or a claim of indirect sex discrimination if they are given to full-time workers, 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.
3. 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.
4. Pro rata the bank holiday leave across the year. For example, a part-time worker who works three out of five days would receive three-fifths of the bank holiday entitlement.
If a pro rata approach is taken, the calculation can be made on a days or an hourly basis.
For example, an employee entitled to eight bank holidays a year would receive 4.8 days (ie three-fifths of eight days).
If a full-time employee works a 5-day week of 7.5 hours a day then:
- a full-time employee, working a total of 37.5 hours a week, would be entitled to 60 hours annual leave for bank holidays (ie 8 bank holidays x 7.5 hours)
- a part-time employee, working a 3-day week of 22.5 hours, would be entitled to a pro rata bank holiday allowance of 36 hours (ie 22.5 divided by 37.5 x 60). This would also be 4.8 days (four days and six hours for an employee working 7.5 hour days).
For more information, see our Annual leave and holiday pay Q&As.
Case law example
McMenemy v Capita Business Services Ltd (2007) is one of the few reported cases concerning bank holidays. Here, the Scottish Court of Session held that a part-time worker who did not work on Mondays was not entitled to time off or pay in lieu for those bank holidays which always fell on a Monday. However, this case does not set a general precedent for other organisations because the employer in the case operated on a six or seven day a week basis, and both part-time and full-time workers were not given time off for the bank holiday if they did not work on the day on which it fell.
Employers who operate on a Monday to Friday basis may risk a discrimination claim if full-time workers always work on Mondays, and are given the bank holiday as leave, while a part-time worker, who does not work Mondays, is denied time off in lieu for a Monday bank holiday.
Can a part-time worker ever be safely selected for redundancy?
If the correct approach is taken, a part-time worker can be safely selected for redundancy. The process would include the usual redundancy stages, including considering all the workers in the pool for selection, following a fair procedure for selection, and scoring all potential candidates against suitable objective criteria.
If a part-time worker is selected after such a process, and brings a claim, 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 Regulations 2000
- unfair dismissal under the Employment Rights Act for employees
- detrimental treatment including dismissal under The Part-Time Worker’s Regulations for workers
- indirect sex discrimination.
Particular care must be taken to calculate part-time workers’ redundancy pay correctly if they are selected for redundancy.
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.
Employers must pay part-time employees with over two years’ continuous service their redundancy pay for all their years of service.
The amount of a week's pay is the amount that is payable for the employee’s normal hours of work, subject to a statutory maximum. 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 only. This is because it is this role which is redundant and employees are being compensated for loss of their current part-time position, not any full-time position they held previously.
Whilst the payment is based on part-time employment only, length of service is based on the current part-time and any previous full-time positions.
Case law example
Employers should be extremely careful when dismissing part-time workers on the grounds of redundancy, especially where there has been a previous dispute about flexible working hours, otherwise the selection for redundancy will be unfair and discriminatory (see Fidessa plc v Lancaster, 2016).
In another case on part-time workers’ entitlement to redundancy pay from 2009, which reached an out-of-court settlement, over 1,000 soldiers won a part-time workers’ claim against the Ministry of Defence when part of the Royal Irish Regiment was disbanded. 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. The BBC 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.
Do employers have to pay part-time workers full overtime rates for hours worked that are within full-timers’ normal hours?
The allocation of overtime and pay for work that occurs within normal full-time hours can be complex where part-time workers are involved.
The starting point, under the Part-Time Workers Regulations, is that not paying part-time workers overtime rates for work done within the normal hours worked by full-time workers is not less favourable treatment. Unless the contract says so, there is no obligation on employers to pay a part-time worker a full overtime rate until they have worked the same number of hours as their full-time counterparts.
Take, for example, a company with full-time staff working five, 8-hour days, a week. It hits a busy period and asks all staff to work extra hours. A part-time worker, who normally works a 4-hour day, agrees to work a 6-hour day. Under the part-time workers regulations, she can receive her normal hourly rate of pay, with no overtime payment, for the additional hours. However, a part-time worker, who normally works three days a week, who agrees to work a full 5-day week and one evening, should receive her normal pay rate for the extra two days, but an overtime payment for the extra evening.
Employers who require workers to work periods of unpaid overtime should be very careful, however, as 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. There have been disputes about how the law applies. If part-time workers are paid the same hourly rate as full-time workers, not paying them overtime would mean the part-time worker is paid less than the full-time worker would earn pro-rata for the same hours.
Employers should bear in mind that:
- It may be sex discrimination, and a breach of equal pay protection, not to pay full overtime rates to part-time workers when the overtime 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.
Case law example
In Voss v Land Berlin (2007), a part-time teacher, who regularly worked extra hours above her contracted hours, but did not exceed the normal hours of a full-time worker, received less overtime pay than a full-time worker. This meant she did not earn as much overall as a full-time worker would earn for working the same overtime hours. She won her claim 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.
Unless the employer can justify the difference in pay, the above case suggests that employers would be well advised to consider paying part-time workers the same overtime rates as full-time workers, once the part-timers exceed their normal hours.
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