Protecting the rights of part-time workers

Part-time Work Regulations  

Although the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 have been in force for around 5 months it is understood that few, if any, claims have been lodged to date in Scotland. In part this will be due to lack of familiarity on the part of advisers with these relatively new provisions but it is also likely that the degree of overlap in coverage between the Regulations and the indirect discrimination provisions in the Sex Discrimination Act 1975 will have served to reduce the number of claims which might otherwise have been made. There are circumstances, however, when a claim, which would not be sustainable under the 1975 Act, could proceed to a successful conclusion under the Regulations despite the fact that the Regulations could not be described as “widely” drafted.

The Regulations implement the Part-Time Work Directive which, in turn, implements the European Framework Agreement on Part-Time Work. It is notable that the final version of the Regulations refers to “Workers” rather than “Employees”, the latter term having been used in the earlier draft Regulations . In a Press Release, issued on 3 May, the Government indicated that it had “listened carefully to the strong arguments which emerged during…consultation…..” and had decided to extend the measures from employees to workers “in order to help thousands of extra part-timers who are some of the most vulnerable members of the workforce”.

It will undoubtedly have been pointed out to the Government that the previous restriction of coverage to “employees” might well have been subject to challenge on the basis that it did not accord with the intent of the parent Directive.

An “employee” is defined as someone who has entered into or works under a contract of employment while a “worker” is an individual who has entered into or works under a contract of employment or any other contract (whether express or implied) whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not that of a customer or client of any profession or business undertaking carried out by the individual. This brings within the scope of the Regulations some casual workers and home workers who might conceivably have been excluded otherwise while excluding the scenario which arose in Loughran and Kelly v Northern Ireland Housing Executive [1998] IRLR 593 HL in which solicitors in private practice seeking to be appointed to the NIHC’s panel of solicitors which they used to defend claims were held to be offering to enter into a contract personally to execute work or labour and thus to come within the scope of employment for the purposes of discrimination law.

Full-time and part-time workers - who falls into which category?

Regulation 2(1) and (2) define how full-time and part-time workers are to be identified for the purposes of the Regulations. In essence, someone will be a full-time worker if he/she is paid wholly or in part by reference to time worked and his/her employer treats him/her as a full-time worker, having regard to the “custom and practice” of the employer. Similarly, a part-time worker will be someone who is paid wholly or partly by reference to time worked and whose employer treats him/her as a part-time worker, having regard to the employer’s custom and practice. This is, obviously, a flexible definition, taking into account the varying practices of employers. It means that someone working X hours could be a full-time worker when working for one employer and a part-time worker when working for another employer.

Less favourable treatment is not allowed unless justified

The basic underlying principle in the final version of the Regulations remains the same as that set out in the first draft Regulations - part-time workers should not be treated less favourably because of their part-time status than comparable full- time workers in relation to contractual terms or by being subject to any other detriment. Treatment should be on a pro-rata basis (unless application of that principle would be “inappropriate”) although the employer has the right to objectively justify any differential treatment (Regulation 5).

Given that the vast majority of part-time workers are women, there have been many claims of indirect discrimination made under the Sex Discrimination Act 1975 where part-time workers have been treated less favourably than full-time workers. However, such claims under the SDA require the part-time worker to show disparate impact between the sexes. Those workers who fall within the scope of the Regulations will no longer have to prove disparate impact and there will be no difficulty in male part-time workers bringing claims under the Regulations.

So far as the issue of objective justification is concerned the Notes issued by the DTI which accompany the Regulations specify that less favourable treatment will only be justified on objective grounds if it can be shown that the less favourable treatment:

• is to achieve a legitimate objective, for example a genuine business objective;
• is necessary to achieve that objective; and
• is an appropriate way to achieve the objective.

In essence, this is the test, set out in Bilka-Kaufhaus v Weber von Hartz [1986] IRLR 317 ECJ, which is applied in indirect sex discrimination cases

Who will be a comparable full-time worker?

To establish a claim a part-time worker must be able to compare his/her treatment with that of a “comparable full-time worker”. Regulation 2 (4) specifies that a full-time worker will be an appropriate comparator if, at the time when the alleged less favourable treatment takes place, both workers are:-

(a) (i) employed by the same employer under the same type of contract, and

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and

(b) the full-time worker works or is based at the same establishment as the part-time worker, or where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

The terms of Regulation 2 are such that they significantly limit the scope of permissible comparisons. Of particular note is the fact that a part-time worker is only able to compare him/herself with a full-time worker employed “under the same type of contract”.

Regulation 2(3) sets out the circumstances in which employment will be treated as being under a different type of contract. In essence a distinction is made between “employees” and “workers” and between those engaged on a fixed term contract and those who are not. Those employed under a “contract of apprenticeship” are also to be treated as on a different contract from a “normal” full-time worker. It is not uncommon for part-time workers to be engaged on a different type of contract from that of full-time workers, even where the work which is done is identical or similar where that is the case no valid comparison will be possible. The need to make this “like for like” comparison acts as an early stage barrier which will prevent a claim proceeding even where the detrimental treatment complained of is due to the fact that an individual works part-time and the employer is not able to justify the treatment in question. Another way of approaching this whole issue would have been to allow comparisons to be made between individuals on different types of contract with the employer being able to put forward the different nature of the two contracts as justification for the differential treatment. It would then be for a tribunal to decide whether the contractual differences did justify the differential treatment in question.

As currently framed, the Regulations provide something of an incentive to employers to engage part-time workers on different types of contracts from those which apply to full-time workers. That could be seen as undermining the purpose of the whole exercise, at least so far as the Framework Agreement is concerned, which was to ensure that part-time workers are treated in the same way as full-time workers unless a distinction in treatment can be justified.

It is also worth noting that there is no scope for hypothetical comparisons to be made - in other words a part-time worker cannot argue that if there had been a comparable full-time worker employed then he/she would have been treated differently in respect of the matter giving rise to the complaint. Furthermore, a comparison is only allowed between individuals employed by the same employer. There is no scope for comparisons between associated employers, as there is in the Equal Pay Act 1970, nor for comparisons with workers employed by another “non -associated” employer, as there is under Article 141 EU Treaty (See Scullard v Knowles [1996] IRLR 344 and South Ayrshire Council v Morton (EAT/1267/99, unreported, heard 21 September 2000) for further discussion. While the latter is not a phenomenon we may be too familiar with in the UK it is more common in other European states where industry -wide collective agreements are not unusual. The Framework Agreement actually states that “Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.”)

Overall, neither European sex discrimination nor equal pay law adopts such a restrictive approach

to the comparison which is permissible, the consequence being that few complainants will rely simply on the Regulations when bringing a claim unless they have no alternative.

Workers who move from full to part-time work

A new Regulation (Regulation 3) was added between the first and final version of the Regulations to deal with the position of full-time workers who move to part-time work (whether under a new or varied contract). In these circumstances the worker will be able to compare their part-time conditions to those which applied under the previous full-time contract.

Similarly, the final version of the Regulations now contains a provision which deals with the position of workers returning part-time after absence of less than twelve months who previously worked in a full-time capacity (Regulation 4). Workers in this situation who return to the same job or a job at the same level (whether under the same contract or not) on less than full-time hours are entitled to compare their part-time conditions with those which applied when they worked full time.

Both Regulation 3 and 4 seek to protect those who move from full to part -time working from detriment, thereby potentially encouraging moves of this type. This is in accordance with the objectives of the parent Directive and was a matter which appeared to be completely overlooked in the first draft Regulations which were issued. It is envisaged that those returning from maternity leave, parental leave, career breaks etc will benefit from these provisions which allow for a form of self-comparison. However, it must be stressed that the Regulations do not give workers a legal right to move from full-time to part-time work (despite misapprehensions to the contrary in some quarters.)

Right to receive a written statement of reasons for less favourable treatment

A worker who considers that his employer may have breached Regulation 5 (i.e. the right not to be treated less favourably on the ground of part-time status) is entitled to make a written request for a written statement giving particulars of the reasons for the treatment (Regulation 6). In the draft Regulations the employer was given 14 days to respond to such a request by providing a “written statement giving particulars of the reason for the treatment”. That period has been increased in the final version of the Regulations to 21 days. The Government suggests that the increased period will give both parties a chance to establish the facts and lessen the likelihood of a claim being taken to an employment tribunal.

The extent of the information which should be provided by an employer in response to such a request is not clear. Do employers just have to give the bald reason for the treatment (which could be “Because you work part-time”) or do they have to set out any objective justification on which they rely in the event that the treatment is on the ground of part-time status? Written statements of this type by an employer are specifically stated to be “admissible as evidence” in any proceedings and a tribunal is entitled to draw inferences from a statement which is “evasive or equivocal” (in the same manner as they currently do under the SD74 and RR65 questionnaire procedures).

Protection against victimisation

Regulation 7(1) specifies that “an employee” will be treated as automatically unfairly dismissed if the reason for the dismissal (or, where there is more than one, the principle reason) is one of those set out in Regulation 7(3). No qualifying period of service is necessary to make such a claim (Para. 2(2) Schedule to the Regulations).

Regulation 7(2) states that a “worker” has the right not to be subjected to a detriment by the employer which is done on a ground specified in Regulation 7(3). Obviously “workers” are not able to claim unfair dismissal under the Employment Rights Act 1996, that being a right which is restricted to the narrow category of “employees”. However, workers who lose their “employment” for a reason set out in Regulation 7(3) would be able to make a claim under the detriment provision in Regulation 7(2).

The reasons/grounds set out in Regulation 7(3) are:

(a) that the worker has -

• (i) brought proceedings against the employer under these Regulations;
• (ii) requested from his employer a written statement of reasons under Regulation 6;
• (iii) given evidence or information in connection with such proceedings brought by any worker;
• (iv) otherwise done anything under these Regulations in relation to the employer or any other person;
• (v) alleged that the employer had infringed these Regulations; or(vi) refused (or proposed to refuse) to forgo a right conferred on him by these Regulations, or

(b) that the employer believes or suspects that the worker has done or intends to do any of the things mentioned in sub-paragraph (a)

These provisions are very similar to those which apply in relation to victimisation under the discrimination statutes and, in common with those provisions, protection will not be given where an allegation that a right has been infringed is “false and not made in good faith”. It is likely that the case law which has developed under the Sex Discrimination Act 1975 and the Race Relations Act 1976 in this area will be considerable assistance in interpreting these provisions.

In the event that the reason for the selection of an employee for redundancy is one of those set out in Regulation 7(3) the resulting dismissal will also be automatically unfair (Para. 2(1) Schedule to the Regulations).

Vicarious liability

Regulation 11 makes an employer liable for the acts of his/her employees who are acting in the course of employment, unless the employer can show he/she took such steps as were reasonably practicable to prevent the worker doing such acts. Again, this provision is similar to that found in discrimination statutes and the resulting case law will be relevant.

Special classes

Those in Crown employment, House of Commons/Lords staff, and police officers all come within the scope of the Regulations. Members of the armed forces are also covered except in relation to the right to claim unfair dismissal. Those holding judicial office do not fall within the scope of the Regulations. (Regulations 12 - 17 inclusive.)

Complaint to employment tribunal

A worker who considers that his/her rights have been infringed under the Regulations can make a complaint to an employment tribunal within 3 months of the date of the act in respect of which complaint is made (Regulation 8). If there is a series of similar acts then the time limit will run from the last act in the series. The tribunal has a discretion to extend the time limit where it considers that it is “just and equitable” to do so.

Regulation 8(6) specifies “Where a worker presents a complaint under this regulation it is for the employer to identify the ground for the less favourable treatment or detriment.”

Where a complaint is held to be well founded a tribunal can:

(a) make a declaration as to the rights of the complainant and the employer

(b) order the employer to pay compensation to the complainant

(c) make a recommendation that the employer take action which appears to the tribunal to be reasonable, within a specified period, to obviate or reduce the adverse effect on the complainant of any matter to which the complaint relates.

These remedies are the same as those available in a discrimination case but no compensation for injury to feelings can be awarded (Regulation 8(11).

Regulation 8(8) places a two-year limit on the remedy of a worker who complains about the terms on which he/she is afforded access to an occupational pension scheme or about treatment under the rules of such a scheme. It is difficult to envisage that this will be legally sustainable given the terms of the decision of the ECJ in Preston and Ors v Wolverhampton Healthcare NHS Trust and Ors [2000] IRLR 506. In the meantime, workers who are able will bring a pension related complaint under equal pay law as well as under the Regulations

Non-statutory guidance

The Government has also issued a non-statutory Guidance document with the Regulations to “provide further information on complying with the law… it also offers examples of how to adopt best practice in relation to part-time working.” The document is divided into two sections - Compliance Guidance and Best Practice Guidance. A wide range of subject matters is covered in the compliance section including promotion, pay rates, overtime, profit sharing and share option schemes, sick and maternity pay, access to pensions, redundancy and access to other benefits including different forms of leave. The Best Practice Guidance focuses on widening access to part-time work including best practice in dealing with requests to transfer from full to part-time work and increasing the range of work which can be done on a part-time basis.

One particular matter covered in the Compliance section does help to illuminate a potential difficulty which arises in relation to Regulation 5(4). That Regulation specifies that part-time workers do not have the right to claim less favourable treatment if the employer denies them premium overtime rates when they work beyond their part-time hours. Overtime will only be payable once the part-time worker has exceeded the number of hours which the comparable full-time worker is required to work in the period. This is in accordance with the decision of the ECJ in Stadt Lengerich v Helmig [1995] IRLR 216. However, neither this Regulation nor Helmig dealt with the matter of premium payments for unsocial hours. It is not unusual for an employer to pay time and a half for week day overtime but to pay double time for weekend or other unsocial hours working. Is the part-time worker entitled to the unsocial hours premium? The Compliance Guidance suggests, “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.”    

The Guidance document, which does provide useful assistance for employers, is available from the DTI.

Shona Simon is a partner with employment law specialists, Mackay Simon