Part-time Vs Full-time Working – Your Rights to Equal Treatment

How much holiday are you entitled to when you work part-time, and what about bankholidays? Find out what your main rights are as a part-time worker under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”).

Some Statistics

In order to put things into context it may be helpful to take a brief look at the part-time employment market. According to the Office of National Statistics (ONS), 8,049,000 people worked part-time and 21,787,000 worked full-time in May/ July 2013. Of the part-time workers, 5,949,000 were women and only 2,101,000 were men. Although this is a decrease from May/ July 2012 (where 5,996,000 women worked part-time) it shows substantially more women than men currently work part-time. Furthermore, the number of women working part-time is growing – up by 0.6% in April/ June 2013, whereas the number of part-time working men decreased by 1.3%.

Although this article focuses on part-time workers’ rights under the Regulations, these figures show that if an employer has a policy that treats part-time workers less favourably, they could easily face a claim for indirect sex discrimination due to the amount of women that make up the part-time workers market.

Starting Point

Employees with 26 weeks’ continuous employment have a legal right to request to work flexibly if they care for a child under 17, a disabled child under 18 or an adult that is their spouse, civil partner, partner, relative or living at their address. However, whilst there is a right of request, there is no right to make a switch and an employer is not obligated to grant the request (although a refusal may be indirect discrimination). Find how to request flexible work here.

Your Rights

A part-time worker should not to be treated unfavourably because they work part-time. They should receive the same rates of pay, have the same access to promotion and training and incentive schemes and receive an equivalent pro-rated holiday entitlement. This applies to all workers (not just employees), whatever their gender. Differences in treatment can be justified for objective reasons, such as qualifications or conduct.

A Comparison Is Needed

In assessing whether you may have been treated less favourably, you must compare yourself to a colleague (called a “comparator”). For a part-time employee, this is a full-time employee of the same employer under the same type of contract, engaged in the same or broadly similar work and (preferably) based at the same workplace. An employee, for example, could not be a comparator for a consultant, even though their work may be similar, as they have different types of contract.

The Pro Rata Principle

Under the Regulations, part-time workers should receive the same pay and benefits on a pro rata basis as full-time workers. Some practical examples are:-

Holidays

A part-time worker is entitled pro rata to the same amount of paid holidays as a full-time worker. This is calculated on the basis that workers have a statutory minimum entitlement of 5.6 weeks’ holiday per year. Since they work fewer days or hours per week, part-time workers are entitled to fewer paid holidays.

In terms of bank holidays, however, the situation is less straightforward. Some employers only allow workers paid holidays where the public holiday falls on a day they would usually work. If you work Wednesday to Friday you would not be entitled to paid holiday for public holidays falling on a Monday. Although at first glance this would appear to be less favourable treatment, this approach has been permitted on the basis that the reason was not the part-time status but the working days. Nonetheless, the law is not clear on this point and employers’ policies vary so you should feel relatively comfortable requesting a pro rated entitlement to bank and public holidays regardless of whether or not they fall on your usual working days.

Overtime

Certain businesses pay overtime rates once the part-time worker has worked the same amount of hours per week as the threshold for a full-time worker. Others pay overtime rates after a certain number of hours have been worked over contractual hours (e.g. 5 hours over the normal weekly hours). Both of these approaches should be challenged as they treat part-time workers less favourably and potentially discriminate indirectly against women (who are statistically more likely to work part-time). The fairer policy would be to pay overtime rates of pay whenever the worker exceeds their contractual hours, whether full time or part time.

Benefits

When it comes to benefits, a part-time worker is entitled to receive a pro rated benefit. However, an employer may be able to excuse enrolling you in a scheme if the cost of providing the health insurance, for example, was disproportionate to the benefit you would receive. This would only justify exceptional differences in treatment.

If You Are Treated Less Favourably

If you are being treated less favourably, the best initial approach is to check your facts and have an informal discussion with your line manager. You could also lodge a formal grievance or request a written statement of the reasons for this treatment, which you should receive within 21 days of your request. If you are unsatisfied with the response, you should consider if there is the possibility to negotiate and whether it is worthwhile seeking financial compensation in the Employment Tribunal. This can be done while you are still working or after the relationship has ended but the claim must be presented within 3 months of the last act or omission you are complaining about.

The Future

The government has announced its intention to extend the right to request flexible working to all employees with 26 weeks’ continuous employment, regardless of whether or not they have caring responsibilities. This is due to become law by 2014.

 Author:  Melanie Stancliffe from Thomas Eggar LLP (Solicitors. For further assistance, please contact Michael Goitein or Melanie Stancliffe at Thomas Eggar LLP (Solicitors) on 0207 972 9720 Michael.Goitein@thomaseggar.com, Melanie.Stancliffe@thomaseggar.com.

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