Legal Article - Employment Law

Part-time Employees

Prior to current legislation most part-time employees were women and the employer was only at risk in treating them differently from full-time employees when committing an act of indirect sex discrimination.

For example, when an unjustifiable requirement or condition, which is applied to both men and women, results in one sex being disproportionately disadvantaged in comparison with the other sex.

Thus if an employer treated a part-time female employee less favourably than a full-time male employee (e.g. gave less holiday) the employer would have had to objectively justify the different treatment.
The employer would have to prove with evidence that it was necessary and appropriate to do so in order for the company to fulfill its objectives.

Now part-time employees have the same statutory rights as full-time employees. e.g. right to claim unfair dismissal after one year’s service or redundancy pay after two years service.
Whilst the above rights still apply, part-time workers of both sexes now have the right not to be treated less favourably than a “comparable full-time worker”.

Definitions

A full-time employee is a person who is paid wholly or in part by reference to the time he/she works and is customarily regarded as such.

A part-time employee is a person who is paid wholly or in part by reference to the time he/she works and is customarily not regarded as a full-time employee.

For part-time employees to exercise their rights they have to compare themselves with a “comparable full-time employee”. The latter is someone who is

• Engaged in the same or broadly similar work
• Has broadly similar qualifications, skills and employment experience, and
• Works at the same establishment, or at a different establishment within the same organisation.

What is Meant by Less Favourable Treatment?

This will occur if a part-timer’s contract contains less favourable terms, or he/she is subjected to any other detriment by any act, or deliberate failure to act, of his/her employer, unless such treatment can be justified on objective grounds.
The pro-rata principle also applies unless it is inappropriate to do so e.g. a company car or health insurance.
Examples of less favourable treatment are

- Lower hourly rate of pay
- Fewer annual holidays
- Longer service requirement before qualifying for sick pay or length of time it is received
- Not participating in profit sharing or share option schemes
- Unfair selection for redundancy
- Longer service period for private health care entitlement
- Different pension qualifications
- Failure to provide the same opportunities for training, promotion and transfers
- Different overtime premiums (these only have to be paid when the same number of hours have been worked).

From Full-time to Part-time Employment

There is no right to be given part-time employment. However, if former full-time employees begin to work part-time for the same employer within 12 months, they can compare their terms and conditions either with a comparable full-time employee, or with the way they used to be treated when full-time.

Protection from dismissal or other detriment
If part-time employees believe they have received less favourable treatment, they can ask their employer for a written statement detailing the reasons for what the worker considers to be unfavourable treatment.

This must be provided within 21 days and must not be evasive. Any dismissal for doing so will be automatically unfair.

It will also be automatic unfair dismissal if it is for any of the following reasons:

- Refused to forgo a right conferred on him/her by the Regulations
- Alleged that the employer had infringed these Regulations
- Brought proceedings against the employer under the Regulations
- Given evidence or information in connection with such proceedings brought by any other worker
- Otherwise done anything under the Regulations in relation to the employer or any other person.

Part-time Pensions

In the past many part-time employees were not allowed to join occupational pension schemes. The House of Lords has decided this was indirect sex discrimination.

Women can now claim membership dating back to 8 April 1976 providing they are still employed with the company, or have presented a claim to a tribunal within six months of leaving such a company. For contributory schemes, joining or securing extra years of service will require the employee paying back contributions.

The employer may still have a defence if he/she can argue that the exclusion of part-time employees from the pension scheme was objectively justified e.g. they worked too few or erratic hours where administrative costs were disproportionate.

Men’s claims can only succeed if a woman has succeeded against his employer, as they can then claim direct sex discrimination.
Practical Considerations

Although not legal requirements, other than statutory rights to request flexible working, the Government recommends employers to consider the following practices:

- Seriously consider requests for job sharing and keep a list of those interested in job sharing arrangements

- Look seriously at requests to change to part-time working and explore with their workers how to do so
- Establish a procedure for discussing with workers whether they wish to change
- Periodically review how individuals and their representatives are provided with information on the availability of part-time and full-time positions

- Consider how to make it easier for workers to vary their hours, including transferring between part-time and full-time work, to the benefit of both workers and the company.


Published: 25 May 2011

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