GUIDE TO THE PART-TIME WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS 2000 ( THE REGULATIONS )

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1 GUIDE TO THE PART-TIME WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS 2000 ( THE REGULATIONS ) 1. Introduction The EU Part-Time Workers Directive (No. 97/81) was adopted by the European Union on 15 December The Government proposes to implement the Directive in the U.K. by means of the Regulations which have recently been published. The Regulations are due to come into force on 1 July The Regulations make it generally unlawful for employers to treat part-timers less favourably in their terms and conditions of employment than comparable full-timers. Specifically, the Regulations provide that a worker must not be treated less favourably on account of the fact that he or she works part-time, unless that treatment is objectively justified. The Regulations require an employer to apply a pro rata principle to certain of the contractual entitlement of part-time workers. This means that where a comparable fulltime worker is entitled to pay or benefits, the part-time worker is entitled to receive the same proportion of that pay or benefit as the number of his weekly hours bears in relation to the number of weekly hours of the full-time worker. 2. Workers The Regulations provide protection for workers, not simply employees. It will therefore include employees, agency workers, home workers and may include freelancers, apprentices, trainees or consultants if they have entered into a contract to provide their services personally to an employer, even though that contract is not a contract of employment. 3. Comparable full-time workers Part-time workers can compare themselves with full-time workers who work on similar contracts in the same establishment. The comparable full-timer must be engaged in broadly similar work having regard, where relevant, to whether he or she has a similar level of qualifications, skills and experience. Where there is no full-time comparator at the same establishment as the part-timer, the part-timer can make a comparison with a full-timer engaged in similar work in a different establishment for the same employer. 4. Written statement procedure A part-timer worker who believes he or she has been treated less favourably than a comparable full-timer can make a request to his or her employer for a written statement of reasons for such less favourable treatment. The employer must respond to the request within 21 days. This procedure allows both parties to establish the facts and reduces the chance of the part-timer making a complaint in an employment tribunal. 1

2 5. Rights not to be unfairly dismissed or to be subjected to detriment An employer will be treated as having unfairly dismissed a worker (and the worker will be entitled to obtain compensation in respect of the dismissal) where the reason for that dismissal is that the worker has: brought proceedings against the employer under the Regulations; requested from the employer a written statement of reasons; alleged that the employer has infringed the Regulations; or has done anything else under the Regulations. A dismissal for any one of the reasons outlined above will be regarded by the employment tribunal as an automatic unfair dismissal. It is important to note that workers will be protected by these measures regardless of their length of service; they do not have to have completed the 12 months service which is normally required in order to bring such a claim. A worker has the right not to be subjected to any detriment caused not only by an act of his employer, but also by any failure to act, for any of the reasons listed above. Complaints concerning unfair dismissal or detrimental treatment should be presented to an employment tribunal within three months of the relevant event occurring. 6. Rate of pay 6.1 Hourly rate Part-timers must not normally receive a lower basic hourly rate of pay than comparable full-timers. An employer may pay part-timers a lower hourly rate only where this is justified on objective grounds, for example where a performance related pay scheme is in place and the full-time worker and the part-timer worker are shown to have different levels of performance (as measured by a fair appraisal system). 6.2 Overtime rate Part-timers do not have an automatic right to overtime payments once they work beyond their normal hours. However, once part-timers have worked up to the normal hours of a full-time worker in the same period of time, they are entitled to the same hourly rate of overtime pay as fulltimers. This does not affect the rights of part-time workers to receive unsocial hours payments or weekend payments or other forms of enhanced pay (see also paragraph 7 below). 7. Enhanced pay (bonus pay; shift allowances; unsocial hours payments) The principles detailed in paragraph 6.1 above apply to enhanced rates of pay. Where special rates of pay apply (which may include bonus pay, shift allowances, unsocial hours payments or weekends payments), part-timers are entitled to the same hourly rate as a comparable full-time worker. 2

3 8. Profit sharing, share option schemes Exclusions of part-time staff from profit sharing or share option schemes will ordinarily be unlawful. Part-timers should receive a pro rata level of benefits in line with the number of hours they work, unless their exclusion can be objectively justified. In the case of share option schemes, there may be cases where exclusions can be objectively justified. In particular, this may be so where the value of the share options is so small that the potential benefit to the part timer of the options is less than the likely cost of realising them. 9. Other benefits: health insurance; subsidised mortgages; staff discounts Benefits such as subsidised mortgages and staff discounts should be applied to part-time workers, unless an exception is justified on objective grounds. Where a benefit, such as health insurance, cannot be applied pro rata, this is not of itself an objective justification for denying it to part-time workers. The less favourable treatment of part-time workers will still need to be justified on objective grounds. These might include the disproportionate cost to the organisation of providing such a benefit, or the imperative to meet a real need of the organisation. 10. Contractual sick and maternity pay A part-timer must receive the same sick pay and maternity benefits as a full-timer pro rata unless different treatment is justified on objective grounds. Part-timers should not be treated less favourably than comparable full-timers in terms of: calculating the rate of sick or maternity pay; the length of service required to qualify for payment; and the length of time the payment is received. 11. Occupational pensions Employers should not discriminate between full-time and part-time workers over access to pension schemes, unless different treatment is justified on objective grounds. 12. Leave/holidays: annual leave; maternity and parental leave; career breaks The holiday entitlement of part-time workers should be pro rata to that of full-time workers. Part-time workers, like their full-time colleagues, are entitled to a minimum of statutory annual leave, maternity leave and parental leave. Contractual maternity leave and parental leave should be available to part-time workers as well as full-time workers. Career break schemes should be available to part-time workers in the same way as for full-time, unless their exclusion is objectively justified on grounds other than their parttime status. 3

4 13. Public holidays/bank holidays There may be a particular problem in how to deal with public and bank holidays in respect of part-time workers. Many of these holidays fall on a Monday and this may cause problems, for example, by putting those part-time workers who do not work on Mondays at a disadvantage. The employer may apply the bank holiday entitlement pro rata and compensate for any shortfall in holiday by giving the worker extra days of holiday. Where possible the employer should consult with staff and offer a broad range of options to compensate for any shortfall in hours. Alternatives may include offering work on a different day or at home; accruing time on flexitime; or taking flexitime. 14. Reorganising working hours This is a contractual matter between employer and worker. However, in reorganising workloads, employers should not treat part-timers less favourably than full-time workers, unless this treatment can be objectively justified. 15. Promotion Part-timers should be given equal opportunity to seek promotion. Previous or current part-time status should not of itself constitute a barrier to promotion to a post, whether the post is full-time or part-time. 16. Access to training Employers are under an obligation not to exclude part-timers from training. Employers should arrange for training to be scheduled wherever possible at the most convenient times for the majority of staff, including part-timers. 17. Redundancy In a redundancy situation, part-timers should be treated no less favourably than their fulltime equivalents. The criteria an employer uses to select jobs for redundancy should be objectively justified. 18. Requests for part-time work The EU Part-Time Workers Directive contains provisions about allowing access to parttime work and making working time more flexible. Guidance on these provisions are to be contained in a Code of Practice which is yet to be issued by the Secretary of State. Employment tribunals will take this Code into account where relevant and, therefore, employers are advised to give consideration to this Code once it is issued. Currently, there is no legal right for a worker to be able to insist upon a change his or her hours of work. This is a matter of negotiation between the worker and the employer. However, it may amount to sex discrimination if an employer refuses to allow a worker to work part-time, for example when a woman returns from maternity leave. At present, the employer has a duty to consider any such request and in particular to consider whether 4

5 there is a good business reason for refusing such a request. If an employer grants a woman s request to work part-time, then it must treat requests from a man on the same basis. To do otherwise would make the employer liable for claims of direct sex discrimination. Employers should look seriously at requests to work part-time, and explore with their workers how this change could be accommodated. In addition, employers may consider establishing a procedure for discussing with workers whether they wish to change from full-time to part-time employment for any reason. 19. Powers of the tribunal A worker who believes that he or she has been less favourably treated than a full-time worker may make a complaint to an employment tribunal. The tribunal has the power to: make a declaration of the worker s rights; order the employer to pay compensation to the worker (the amount of which will be considered by the tribunal to be equitable in the circumstances, having regard to the loss suffered by the worker as a result of the breach) and to recommend that the employer take remedial action. 20. Practical impact of the Regulations Many of the provisions of the Regulations referred to above will not, in reality, change the current legal position in a dramatic way. Under the Sex Discrimination Act 1975 it is illegal to indirectly discriminate against someone on the grounds of their sex. This means that an employer cannot impose conditions which inadvertently have the effect of favouring one sex more than another. Since, at present, more women than men work part-time, conditions that mean that part-timers are treated less favourably than full-timers could constitute indirect sex discrimination. The Regulations will provide all part-timers with protection against less favourable treatment, regardless of their gender. It will be easier to bring and to prove claims of this nature against an employer as there will no longer be a need for the employee to show that such treatment is indirectly discriminatory on the grounds of sex. Further, there will not be the same issues in respect of pools of comparison, or assessment of whether a particular employee can or cannot comply with a requirement which has a discriminatory impact. Employment Department DISCLAIMER: This booklet does not contain legal advice or provide a thorough and complete analysis of the law, and no liability is accepted in connection with it. Some provisions of the law are not covered. The purpose of this booklet is to provide a basic summary of selected main provisions and their effects and to offer some general practical guidance for the setting up, operation and termination of agency relationships. Specific legal advice should be taken in relation to the facts of any given case. 5