Law guide: Employment

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Treatment of part-time workers

Treatment of part-time workers

Contents

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 ensure that part-timers are not treated less favourably in their contractual terms and conditions than comparable full-timers, unless different treatment is justified on objective grounds. Less favourable treatment of a part-timer will be justified on objective grounds if it can be shown that it is necessary and appropriate to achieve a legitimate business objective.

Reorganising hours

Reorganising the hours of work is a contractual matter between employer and worker. However, in reorganising workloads, employers will need to avoid treating part-time workers less favourably than full-time staff. They should also be aware that in certain situations they may be vulnerable to claims for indirect sex discrimination.

To comply with the law, in reorganising workloads, part-time workers should not be treated less favourably than full-time workers, unless this treatment can be objectively justified.

Promotion for part-time workers

If individual companies and the economy as a whole are to reap the full benefit of the flexibility part-time work can offer, then more types of jobs and levels of management must be opened to part-time workers. Part-time workers should also be given equal opportunity to seek promotion as full-time workers. Not only is this an area where an employer could be open to a claim of less favourable treatment, but applying opportunity fairly will bring benefits to the employer.

It should also be borne in mind that part-time staff may be willing to work full-time on promotion because the extra pay available would allow him/her to afford childcare or buy in the necessary help.

To comply with the law, 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.

Rate of pay

Enhanced pay

Examples of enhanced pay include bonus pay, shift allowances and unsocial hours payments.

As a result of the Regulations, part-time workers must receive the same basic rate of pay as comparable full-time workers. They must not be given a lower hourly rate, unless justified on objective grounds.

One example where a different hourly rate might be objectively justified would be a performance related pay scheme. If workers are shown to have a different level of performance measured by a fair and consistent appraisal system, this could justifiably result in different rates of pay.

In general, the same principle applies to enhanced rates of pay. In special circumstances, special rates of pay apply. These may include bonus pay, shift allowances, unsocial hours payments or weekend payments. In these cases, part-time workers are entitled to the same hourly rate as a comparable full-time worker.

To comply with the law, you should pay part-time workers the same hourly rate as comparable full-time workers.

Examples of complying with the law:

  • Bonus pay: A firm awards its workers a Christmas bonus. Its part-time workers receive a pro rata amount, depending on the number of hours they work.
  • Shift allowances: A store has both full-time and part-time workers, working early, day and late shifts. The early and late shifts attract time-and-a-half pay for both full-time workers and comparable part-time workers.
  • Unsocial hours: A part-time care assistant receives the same unsocial hours payment for working between midnight and 6 am as his comparable full-time colleague.

Overtime

Part-time workers do not have an automatic right to overtime payments once they work beyond their normal hours. Only when part-time workers have worked up to the normal hours of comparable full-time workers do they have a legal right to overtime payments.

This does not affect the right of part-time workers, where they are entitled, to receive unsocial hours payments, weekend payments or other forms of enhanced pay.

To comply with the law, you should pay part-time workers the same hourly rate of overtime pay as comparable full-time workers, once they have worked more than the normal full-time hours.

Examples of complying with the law:

A hotel, in which full-timers work five 8 hour days per week, hits a busy period in the run up to Christmas. It asks its entire staff to work extra hours. A part-time worker who normally works 9-12 agrees to work 9-2. She receives her normal hourly rate of pay, with no overtime payment, for the additional hours. The same applies to a second part-time worker who normally works two days a week, and agrees to work four. A third part-time worker normally works three days a week, and agrees to work for five days and one evening. She receives her normal pay rate for the extra two days, but receives an overtime payment for the extra evening.

Profit sharing

Participation in profit sharing and share option schemes has sometimes been limited, and those who work part-time excluded. This can undermine one of the key aims of these benefits - to motivate staff and make sure they have a stake in their company's future success.

The Regulations will make most exclusions of part-time staff from profit sharing or share option schemes unlawful. Part-time workers 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, 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.

To comply with the law:

  • Part-time workers should be able to participate in profit sharing or share option schemes available for full-time staff, unless there are objective grounds for excluding them
  • The benefits part-time workers receive under these schemes should be pro rata to those received by comparable full-time workers

Example of complying with the law:

A retailer operates a profit sharing scheme. The benefits received are determined by the sales figures of individual workers. All staff, whether full-time or part-time, participate in the scheme.

Contractual sick and maternity pay

The Regulations apply directly to contractual sick and maternity pay. This means that there is an obligation on employers not to treat a part-time worker less favourably than a comparable full-time worker. The benefits that a full-time worker receives must also apply to part-time workers pro rata. The only exception will be if the different treatment is justified on objective grounds.

To comply with the law:

Part-time workers should not be treated less favourably than full-time workers in terms of:

  • Calculating the rate of sick pay or maternity pay
  • The length of service required to qualify for payment
  • The length of time for which the payment is received

Example of complying with the law:

A hotel worker who works 2 days per week has been with the hotel for 7 months, when he becomes ill and is absent for two weeks. The hotel's sick pay scheme entitles staff to full pay on certified sick leave after 6 months' service for up to 1 month of absence. The worker receives full pay (i.e. 2 days per week) for the whole of his absence.

Access to occupational pensions

Most part-time workers have access to their employer's occupational pension scheme as a result of the principle of 'equal pay for equal work'. Under this principle, employers must provide equality of access, contributions and benefits to men and women, unless the differences are attributable to a material difference other than sex. As most part-time workers are women, the majority of part-time staff already had access to pension schemes because excluding part-time workers might have represented unlawful sex discrimination against women. However, coverage was not universal. Employers could deny access to part-time workers if the exclusion could be objectively justified on grounds unrelated to sex and there was no disparate impact on women.

Under the Regulations, employers cannot deny access to both male and female part-time workers, unless different treatment is justified on objective grounds. Scheme rules may need to be revised, to ensure that they comply with the new legislation.

To comply with the law, employers should not discriminate between full-time and part-time workers over access to pension schemes, unless different treatment is justified on objective grounds.

Example of complying with the law:

Before the Regulations came into effect, an employer employing full-time and part-time drivers denied the part-time drivers access to the pension scheme. This was not unlawful as, in this company, men and women worked full-time and part-time in equal proportions, and so indirect sex discrimination could not be proved because there was no disparate impact on women.

Under these new Regulations, the employer is required to offer the part-timers access to the pension scheme on the same basis as the full-time workers, unless their exclusion can be justified on objective grounds.

Access to training

Access to training is essential if part-time workers are to work effectively, and employers are to make the most of their staff. There is a strong business case for making sure that staff are equipped to do their job well and their skills are up-to-date. Investing in training, when well-targeted, is investing in the future of the enterprise. It also shows a commitment to workers which will pay dividends in increasing the level of staff morale and commitment to the organisation.

Part-time workers often encounter difficulty in obtaining access to training - especially career-orientated development or vocational training. Either they are excluded entirely, or, though they are in theory entitled to attend, their other responsibilities prevent them from participating because of the inconvenient hours. Denying part-time workers access to training will obviously be less favourable treatment.

To comply with the law, employers should not exclude part-time staff from training simply because they work part-time.

Redundancy

In a redundancy situation, it used to be common practice to make part-time workers redundant before full-time workers. However, the automatic redundancy of part-time staff is likely to be unlawful on two counts: it could well infringe regulations to treat part-time workers less favourably than their full-time equivalents, and, since many part-time workers are women, it is likely to be a form of unlawful sex discrimination. Different treatment of full-time and part-time workers will only be lawful if it can be justified on objective grounds.

To comply with the law, the criteria used to select jobs for redundancy should be objectively justified, and part-time workers must not be treated less favourably than comparable full-time workers.

Example of best practice:

A library employs an equal number of full-time and part-time staff. A shortage of funding forces the library to reduce the money it spends on staff. The library offers three voluntary schemes - voluntary redundancy, early retirement and a reduction in hours. However, savings still need to be made. The library therefore looks at the level of public interest (measured by borrowings and attendance) compared both to its opening hours and to its different sections. It finds that the library is least used on the middle three days of the week, and that the fiction and reference sections have seen marked drops in their popularity. The library therefore balances demand and staff availability cover by making redundant three full-time posts and one part-time in the fiction and reference sections and two part-time posts covering Tuesday to Thursday.

Other benefits

Where possible, benefits should be provided pro rata. In some cases, this may prove difficult. In the case of a benefit such as health insurance or company car, that cannot easily be divided, employers will have to decide whether to withhold it from part-time workers. Employers may decide that the cost of extending such a benefit to part-time workers would be prohibitive. However, it will not be enough for employers to show that a benefit could not be applied pro rata. They must also show that the decision is justified on objective grounds.

Employers providing company cars or car allowance might, by way of best practice, calculate the financial value of the benefit to a full-timer and apply that value pro rata to a part-timer.

Alternatively, if the benefit or allowance was given to a full-timer, for example, every year, then a part-timer working half the full-time hours might be given the benefit or allowance every two years.

Other benefits such as clothing allowance, travel allowance or staff discounts might also be extended to part-timers in line with the principles set out here.

To comply with the law, benefits such as subsidised mortgages and staff discounts should be applied to part-time workers, unless an exception is 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.

Example of complying with the law:

A finance company provides staff mortgages at a reduced rate of interest for all staff, both full-time and part-time. The same preferential rate of interest applies regardless of hours worked and likewise the same multiplier to determine the mortgage advance.

Example of best practice:

As part of its package of benefits for workers, a company provides them with new company cars every two years. The company calculates that the benefit to part-timers, many of whom work less than 50% of normal hours, would be disproportionate to the cost of providing the car. After consultation, it agrees to calculate the financial value of the benefit, and to provide it to part-timers on a pro rata basis. After the calculations are complete, it is found that the benefit is worth £7,000 per year. A part-time employee working a 40% week therefore receives £2,800 per year towards their travel expenses.

Leave/holidays/breaks

Part-time workers, like their full-time colleagues, are entitled to a minimum of statutory annual leave, maternity leave, and parental leave. Many of these entitlements are extended or enhanced by contractual conditions. Part-time workers should have the same leave entitlements pro rata as their full-time colleagues.

To comply with the law:

  • The holiday entitlement of part-time staff should be pro rata to that of full-time workers
  • 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 part-time status

Example of complying with the law:

Holiday entitlement

An engineering firm allows its full-timers, working five days a week, 30 days' holiday a year. A part-time worker who works for two-and-a-half hours every afternoon (five days a week) would be entitled to 30 days' holiday paid at his/her usual rate of two-and-a-half hours per day. A worker working three mornings a week for the same firm would be entitled to three-fifths of the leave entitlement, a total 18 days paid at her usual rate.

Contractual maternity and parental leave

A health authority provides its workers with four weeks' extra paid maternity leave, on top of their statutory entitlement. A part-time worker who works 20 hours a week will be entitled to the full four weeks (of 20 hours) in extra paid maternity leave.

Career break

A retail store allows its workers a career break of up to two years. The qualifying period for the break is three years. A part-time worker is entitled to a two year break under the same conditions as a full-time worker.

Public holidays and bank holidays

The rights of part-timers in relation to public holidays and bank holidays may not always be clear.

Under the Regulations, part-timers should not be treated less favourably than comparable full-timers in their entitlement to public/bank holidays. Allowing full-timers the day off, but not part-timers, is clearly less favourable treatment and unlawful under the regulations unless there is objective justification.

To comply with the law, an employer must treat part-time workers as favourably as they treat full-time workers. In some circumstances, it may be enough simply to give workers a paid day off if their day of work happens to coincide with the public holiday, without giving time off in lieu to those who would not ordinarily work on that day. This may produce a fair result, for example, where a shift system means that full-time and part-time workers are equally likely to be scheduled to work on a public holiday. However, where workers work fixed days each week, such a practice could put part-timers at a disadvantage. Since most bank and public holidays fall on a Monday, those who do not work Mondays will be entitled to proportionately fewer days off. In many workplaces, these workers will predominantly be part-timers.

In such cases, it may be necessary to remove the disadvantage suffered by those staff who do not receive particular days off as a result of their particular working pattern, for example, by giving all workers a pro rata entitlement of days off in lieu according to the number of hours they work.

Whether either of these approaches meets the requirements of the regulations will depend on the particular circumstances. Whatever approach they choose to adopt, employers should bear in mind the principle that it is unlawful to treat part-timers less favourably than comparable full-timers unless there is objective justification for doing so.