Part-time workers

Overview

• The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) aim to ensure that part-time workers are not treated less favourably than comparable full-time workers.
• The PTWR apply to all workers, not just employees.
• There is no qualifying period or upper age limit for bringing a claim under the PTWR.

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Part-timer defined

• A part-time worker is any worker whose hours are less that those of a full-time worker - and this could even cover workers on 'zero hours' contracts who have no fixed hours at all.
• A 'worker' includes a person who works under a contract of employment or under any other contract for the personal performance of work or services (but not services provided for a client or customer).

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Comparators

• To establish less favourable treatment, a part timer must identify an appropriate full-time worker as a comparator.
• The comparator must be employed by the same employer, under the same type of contract, doing the same or broadly similar work and be based at the same establishment.
• If overall the jobs of a part timer and a full timer are substantially the same, small differences between them will not matter. A tribunal will look at the roles performed as a whole and will only take qualifications, skills and experience into account in so far as they are relevant to the actual work undertaken.
• If an employee switches from full-time to part-time work, that individual can compare his or her part-time terms and conditions with their previous full-time terms and conditions. This applies also to workers who switch to part-time work after a period of absence such as maternity leave.

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Right not to be treated less favourably

• A part-time worker has the right not to be treated less favourably than the employer treats a comparable full-time worker as regards the terms of their contract or by being subjected to any other detriment by their employer.
• While part-time work must be the effective and predominant cause of any less favourable treatment, it need not be the only cause.
• The employer may defend a claim by arguing that the reason for the treatment had nothing to do with an individual’s part-time status or that the less favourable treatment is justified on objective grounds (i.e. it is to achieve a legitimate (business) objective, is necessary to achieve that objective and is an appropriate way of achieving that objective).
• The pro-rata principle applies, so that a part-time employee is only entitled to receive a pro-rata entitlement to pay and other benefits, such as holiday entitlement.

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Overtime

• Part-time workers will only become entitled to premium overtime rates once they have exceeded the number of hours a full-time worker would have to work before they were eligible for premium rates.
• Part timers are not entitled to have account taken of previous years they have worked full time when their redundancy pay is calculated.

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Holidays

• Part timers are entitled to 5.6 weeks' annual statutory holiday entitlement, pro-rated according to their working pattern.
• To avoid any discrepancy in treatment, and reduce the likelihood of claims by part-timers that they have not been given sufficient paid bank holidays, they should be given a pro-rata entitlement to bank holidays which fall on the days when they do not normally work. For example, if an individual works 3 days a week, Tuesday to Thursday, he or she should have a pro-rata entitlement to the bank holidays they have missed out on.
• See the useful calculator from Withers LLP on Part-timers' Holiday Entitlement.

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Remedies

• An individual who believes that they have been treated less favourably on the basis of their part-time status is entitled to request a written statement giving particulars of the reasons for the treatment, to be provided within 21 days of the request.
• Such a written statement is admissible in evidence in any subsequent tribunal proceedings.
• Less favourable treatment of part timers can also amount to indirect sex discrimination or breach equal pay law if it adversely affects more of one sex that the other.

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Resources

• Employing Part-Time Workers

Worksmart (TUC)

• Part-Time Workers

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