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Part-time Workers: Protection from Discrimination

The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 give part-timers the right to equal treatment, pro rata, with their full-time equivalents. The Regulations apply to all workers i.e. they protect not only employees but also individuals working (or who worked) under a contract personally to perform any work or services for another party (save if the relationship was of client or customer of a profession or business undertaking).

The protection applies from the first day of employment and covers all terms of the contract including (says the DTI guidance) pay rates, contractual sick pay & maternity pay; access to occupational pension schemes and training; leave (annual holidays, maternity & parental leave, career breaks); and fringe benefits such as subsidised mortgages, staff discounts and health insurance.

The protection also covers detriment to which a full timer would not be subject e.g. if a full-time equivalent would be considered for promotion, so should the part-timer. And a part-timer should not be given a disciplinary warning or dismissed or selected for redundancy in circumstances in which his / her full-time equivalent would not.

Of course, this doesn’t mean that a part-timer should be paid the same salary as a full-timer who works longer hours. Instead, the “pro rata principle” kicks in - the part-timer is entitled to not less than the proportion of pay or other benefit that his / her weekly hours bear to those of the full-time comparator. Here, weekly hours are (average) basic hours, excluding overtime and assuming no sickness, holiday or other absences.

On the other hand, the usual employment practice applies to overtime pay i.e. (unless the contract provides otherwise - which would be unusual) a part-timer qualifies for overtime rates not when working more than his / her basic weekly hours but only when working more than the basic weekly hours of a full-timer. This exception catches only overtime rates, not other premia such as unsocial hours payments or weekend rates.

All this assumes the part-timer has identified a full-time equivalent - what is that? Can a part-timer compare him / herself with any full-timer? No - the full-time comparator must:

• be regarded as a full-timer having regard to the custom and practice of the employer; and
• be employed under the same type of contract. This second condition is tricky.

First, the Regulations set out different categories of contract, so that someone working under one cannot compare him / herself with someone working under another:

• a contract that is not a contract of apprenticeship
• apprenticeship contract
• workers who are not employees
• any other description of worker the employer can reasonably treat as having a different employment contract.

The part-timer must find a full-timer working under the same category of contract. [Note that fixed-term contracts are not a separate category, since Regulations in 2002 forbade discrimination against such workers.]

In a case conducted by Thompsons for members of the Fire Brigades Union, the House of Lords held that it would defeat the Regulations if different contractual terms could defeat a comparison. So the Fire Authority could not say that there was a distinction between two types of contract just because part-time fire fighters were employed on terms and conditions different from those of their full-time colleagues.

Secondly, the two workers must work or be based at the same establishment - only if there is not full-timer comparator at the same establishment can the part-timer rely on a comparator working at a different establishment.

Lastly, the actual kind of work must be the same or broadly similar and the other worker must have a similar level of qualifications, skills and experience. In the FBU / Thompsons fire fighters case, we lost this argument at every level below the House of Lords - the lower tribunals and courts said that it was not enough that fire fighting was the core or central role of both the part-time and full-time fire fighters. Since full-timers had additional job functions (e.g. educational and administrative duties) and different entry and probationary standards, they were not employed on the same or broadly similar work.

However, the House of Lords said that tribunals should not concentrate on differences in the two kinds of work, but look to the similarities. The test of the same / broadly similar work is (only) a threshold - it is almost inevitable that the work of part-timers will differ to some extent from that of their full-time colleagues. In making the comparison, the tribunal should give particular weight to any components of work that are exactly the same. So, if the two sets of worker spend much of their time on the core activity of the enterprise, it’s likely they are comparable; whereas if only the full-timers do so and the part-timers are brought in to more peripheral tasks, they probably are not true comparators.

It is unclear whether the part-timer can rely on a hypothetical comparator where no full-time equivalent actually exists. However, the Regulations do say that a part-timer who was previously a full-timer can compare his / her terms and conditions to those they previously enjoyed.

Having found a comparator and identified less favourable treatment, the part-timer must then show that the difference was on the ground of his / her part-time status - “but for” the claimant’s part-time status, would he / she have been treated less favourably?

Finally, the employer can try to justify that the difference in treatment as being a necessary and appropriate way of achieving a legitimate objective such as a genuine business need.

If a worker thinks they’ve suffered discrimination because they work part-time, they can make a written request for a written statement of reasons and the employer should respond in writing within 21 days. Failure to reply will count against the employer in any tribunal proceedings. [If the difference is dismissal, a worker who is an employee can instead ask for a written statement of reasons for the dismissal.]

Complaints under the Regulations must reach an Employment Tribunal within three months. Note that even if the worker raises a grievance, he / she does not get the three month time limit extension under dispute resolution law, which does not apply here.