Part time workers: an opportune reminder

Key provisions of the Regulations

A part time worker has the right not to be treated less favourably than a comparable full-time worker, either as regards the terms of his or her contract, or by being subjected to any other detriment by any act, or deliberate failure to act, by his or her employer.

In determining whether a worker has been treated less favourably than a full-time comparator, the pro rata principle will generally be applied. This means that where a comparable full-time worker receives pay or any other benefit, a part-time worker is to receive at least the proportion of that benefit that the number of his or her hours bears to the hours of the full-time comparator.

If the employer can justify the less favourable treatment of the part-time worker on objective grounds, the worker's claim in respect of the less favourable treatment will fail.

An employee who is dismissed for bringing proceedings against the employer under the Regulations will be automatically unfairly dismissed, with the usual one-year service requirement being disapplied. The £63,000 cap on compensation applies.

What happened in Sharma?

In Sharma, the Employment Appeal Tribunal (EAT) considered the question: "did part-time status need to be the sole reason for the discriminatory treatment?"

The employees all worked part-time as lecturers for the Council. Their contracts entitled the Council to vary the number of hours they worked, subject to their being guaranteed one-third of the hours they had worked the previous year. Such a contractual provision did not appear in the contracts of full-time and some other part-time lecturers.

The Council suffered some funding difficulties. To effect the necessary savings, the Council adopted a policy of reducing the contractual hours of many part-time lecturers, including the employees.

The Council argued that the reason for the less favourable treatment (reduced hours) was not solely down to their part-time status but rather the fact that their employment contracts made it possible for the Council to reduce hours without being in breach of contract.

Although it was not disputed that the existence and application of the relevant contractual terms amounted to less favourable treatment, the tribunal rejected the claim as the reason for the detrimental treatment was not solely on the ground of the workers being part-time.

The employees appealed.

What did the Employment Appeal Tribunal decide?

The EAT found in favour of the part-time employees. The Regulations are engaged whenever (i) a part-time employee has been treated less favourably than a comparable full-time employee; and (ii) being part-time was one of the material reasons for that less favourable treatment.

In so deciding, the EAT departed from the earlier Scottish EAT ruling of Gibson v. Scottish Ambulance Service, in which the EAT held, somewhat controversially, that the part-time nature of the worker's status had to be the sole reason for the unfavourable treatment. The EAT in Sharma held that this approach was wrong.

The decision in Sharma brings protection in relation to part-time workers in line with other types of discrimination law, where the discriminatory factor need not be the sole, or even the main, factor influencing the employer. It just needs to be a material factor.

Fire-fighters

In addition to the Sharma decision, we have recently had the latest (and hopefully last) instalment in the long-running part-time fire-fighters litigation.

On the principles set out in the 3:2 majority decision of the House of Lords in Matthews and others v. Kent & Medway Towns Fire Authority and others, the Croydon Employment Tribunal held that retained fire-fighters are entitled to equal access to pension and sick pay, on a pro-rata basis, as whole-time fire-fighters.

Other protection of part-time workers

Remember, with 80% of part-time workers being women, adverse treatment of part-time workers may amount to indirect sex discrimination, if it puts women at a particular disadvantage compared to men.

Action points

• Identify contractual terms or practices which may treat part-time workers less favourably. Consider whether you are able to justify objectively such treatment. Remember justification is a specific legal test – it is not the same as an explanation.
• Audit staff benefits, in particular check for benefits which cannot be pro-rated.
• Introduce a flexible working policy, which complies with the statutory framework for such schemes.