Part time workers
The Part Time Workers Regulations 2000 provide that part time workers are entitled to comparable terms of employment to full time workers and must not be treated less favourably than full time workers unless such treatment can be objectively justified. This includes terms relating to pay, access to training, annual leave and the criteria used to select employees for redundancy. This section explains the entitlements in detail, who to compare the part time worker to and best practice for managing part time workers.
We've produced a guide which provides a checklist of things to think about when processing flexible working requests, plus a template flexible working policy and template letters to respond to an employee who requests flexible working on a formal basis - find the guide here
What are the rights of a part time worker?
Under the Part Time Workers Regulations 2000 (the Regulations), part time workers are entitled to comparable terms of employment to full time workers and must not be treated less favourably than full time workers unless such treatment can be objectively justified. The objective justification defence can only be used if it can be shown that the less favourable treatment of a part-timer was necessary and appropriate to achieve a legitimate business aim.
Who is a part time worker?
A part time worker is defined in the Part Time Workers Regulations 2000 as a person who is “paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full time worker”. For example, in a typical business, a full-time worker is one who works a contractual 35-hour week. Other staff may work two to three days a week, or for three or four hours each day. These would be considered to be employed in part-time work.
The definition of “Worker” covers employees employed under a contract of employment and other workers who work under a contract personally to perform work for another party to the contract (who is not a client or customer of the worker’s professional business). This will include temporary workers engaged under a contract for services, casual and seasonal workers, freelancers, home workers and piece-workers. These wide categories of workers have the right not to subjected to a detriment for asserting their rights under these Regulations. Workers are covered regardless of their length of service. A worker also has the right to bring a claim for automatic unfair dismissal (regardless of the length of service) if he or she has been dismissed for a reason relating to him or her having asserted their rights under the Regulations. Unfair dismissal protection however only extends to employees and not to the wider category of workers.
Who should the part time worker be compared with?
For the purposes of comparing the treatment of full time and part time workers the Part Time Workers Regulations 2000 state that the following categories of workers will be regarded as being employed under different types of contracts and therefore cannot be used as a comparator:
- Employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship;
- Employees employed under a contract for a fixed term that is not a contract of apprenticeship;
- Employees employed under a contract of apprenticeship;
- Workers who are neither employees nor employed under a contract for a fixed term;
- Workers who are not employees but are employed under a contract for a fixed term;
- Any other description of worker that it is reasonable for the employer to treat differently from other workers on the grounds that workers of that description have a different type of contract.
In any event a part time worker will have to compare him or herself to another worker in the same category and this therefore limits the impact of the Regulations. For example, a part time worker engaged under a contract for services with an employment business may only compare him or herself with a full time worker engaged under a contract for services by the same employment business.
In addition the Regulations go further and say that a part time worker can compare his or her position with that of a full time worker if:
- The full time worker is employed by the same employer under the same type of contract and is engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualifications, skills and experience; and
- The full time worker works or is based at the same establishment as the part time worker or, where there is not a full time worker based at that establishment who satisfies the criteria set out in the point above, works or is based at a different establishment and satisfies those criteria.
Note that the worker must be employed by the same employer as his or her comparator. There is no provision for comparison with an associated employer.
In what areas must part time workers receive equal treatment?
The areas where parity must be reached between part time and full time workers under the Part Time Workers Regulations 2000 are as follows:
- part timers must receive the same hourly rate of pay as comparable full time workers;
- part timers must receive the same hourly rate of overtime as comparable full time workers, once they have worked more than the normal full time hours;
- part timers must not be excluded from training simply because they work part time;
- part timers must have the same entitlements to annual leave and maternity/parental leave on a pro-rata basis as full time colleagues;
- the criteria used to select job redundancy must be objectively justified and part time workers must not be treated less favourably than comparable full time workers.
Unless there are objective grounds for doing otherwise the following also apply:
- benefits such as subsidised mortgages and staff discounts must be given to part time workers;
- employers must not discriminate between full time and part time workers over access to pension schemes or health insurance;
- part time workers must be able to participate in profit sharing or share option schemes available for full time staff.
In some cases, it may prove difficult to provide the above on a pro rata basis to part time workers. If this is the case you will have to decide whether to withhold it from a part-time worker if the cost of extending such a benefit would be unduly prohibitive or disproportionate. You must still be able to demonstrate that your decision is justified on objective grounds. If the benefit is to be withheld, you should still consider calculating the financial value of the benefit to a full-timer and applying that value pro rata to a part-timer.
Who should the part time worker be compared with?
For the purposes of comparing the treatment of full time and part time workers the Part Time Workers Regulations 2000 state that the following categories of workers will be regarded as being employed under different types of contracts and therefore cannot be used as a comparator:
- Employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship;
- Employees employed under a contract for a fixed term that is not a contract of apprenticeship;
- Employees employed under a contract of apprenticeship;
- Workers who are neither employees nor employed under a contract for a fixed term;
- Workers who are not employees but are employed under a contract for a fixed term;
- Any other description of worker that it is reasonable for the employer to treat differently from other workers on the grounds that workers of that description have a different type of contract.
In any event a part time worker will have to compare him or herself to another worker in the same category and this therefore limits the impact of the Regulations. For example, a part time worker engaged under a contract for services with an employment business may only compare him or herself with a full time worker engaged under a contract for services by the same employment business.
In addition the Regulations go further and say that a part time worker can compare his or her position with that of a full time worker if:
- The full time worker is employed by the same employer under the same type of contract and is engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualifications, skills and experience; and
- The full time worker works or is based at the same establishment as the part time worker or, where there is not a full time worker based at that establishment who satisfies the criteria set out in the point above, works or is based at a different establishment and satisfies those criteria.
Note that the worker must be employed by the same employer as his or her comparator. There is no provision for comparison with an associated employer.
How does paid annual leave apply to part time workers and what about Bank Holidays?
Under the Working Time Regulations 1998, all full time workers (those working 5 days per week) are entitled to a current minimum of 5.6 weeks’ paid annual leave (5.6 x 5 = 28 days). A part-time worker’s entitlement to annual leave will vary depending on the number of days or hours worked. For example, a part-time worker who works three days a week is entitled to a minimum of 16.8 days’ annual leave per year (5.6 x 3 = 16.8 days). This is because one week for this employee is three days and not five. If you offer more annual leave that the statutory minimum entitlement, part-time workers should also benefit from this on a pro rata basis.
Bank holidays
In respect of bank holidays, part-time workers should receive the same entitlement to bank holidays as full timers but calculated on a pro rata basis. Where workers work fixed days each week, a practice of giving the day off to those whose day of work happens to coincide with the bank holiday will put some part-timers at a disadvantage (mainly those who do not work on Mondays), whilst others will be treated more favourably (those who do work on Mondays). This is because most bank holidays fall on a Monday.
The solution is to give all part-time workers a pro rata entitlement of days off according to the number of hours/days they work a week. The easiest way to calculate a part timer's bank holiday entitlement is to calculate on a pro rata basis the number of bank holidays they should be entitled to according to the number of hours/days they work a week. For example, an employee who works three days a week should be entitled to three-fifths of the eight bank holidays each year. This means they are entitled to 4.8 bank holidays, which can be rounded up to five days for practical purposes. You then need to work out how many bank holidays the part-timer will benefit from in the particular holiday year (you will need to check on what days the bank holidays will fall in that year). If, for example, a part-timer will benefit from six bank holidays, but he or she is only entitled to five, then one day can be deducted from his or her general annual leave entitlement. Conversely, if the part-timer will only benefit from two bank holidays but he or she is entitled to four, then an additional two days should be added to their general annual leave entitlement.
You should ensure that each worker is notified in advance of the exact number of days they are entitled to (taking into account when the relevant bank holidays fall) at the start of each holiday year.
Do the Part Time Workers Regulations 2000 apply to temporary workers?
The importance of these Regulations is that they apply to all workers as opposed to merely employees and therefore temporary workers are included within their scope. However this point is perhaps not as onerous as it first appears because where temporary workers engaged in part-time work are concerned, the comparator will be full-time temporary workers of equal status who are engaged by the same employment business on the same assignment. Generally such workers will be treated equally by the employment business in question, in terms of their hourly rate, in any event. Where there is no full time comparator at the same establishment, the part timer can make the necessary comparison with a full timer engaged in similar work in a different establishment as long as they are engaged by the same employer.
An example of a situation where the Regulations would be relevant in the temporary work scenario might be where two temporary workers are supplied to a client for, say, temporary accountancy positions. One is required on a part-time basis and the other full time. However both are required to be at a similar qualification level. Under the Regulations they must receive the same rate of pay from the employment business engaging their services. If they do not the one receiving the lower rate can ask the employment business for written reasons for the less favourable treatment and if that is not forthcoming s/he may bring a complaint under the Regulations in the Employment Tribunal. If that worker’s assignment is terminated as a consequence s/he can bring a further complaint that s/he has suffered a detriment for exercising his/her rights under the Regulations.
What action could a part time worker take against me?
If a part time worker believes that they are being treated less favourably than a full timer of equal status, the part timer can make a request in writing to you for a written statement of reasons. You must respond to the request within 21 days. You should note that if the matter proceeds to an Employment Tribunal your response will be admissible as evidence in any Employment Tribunal proceedings. If you fail to reply or are ambiguous in your response, the Employment Tribunal may take that into consideration when making a decision.
Less favourable treatment under the Part Time Workers Regulations will be where an employer has treated the part time worker in a less favourable manner by:
- the terms of his/her contract; or
- subjecting them to a detriment by their act; or
- a deliberate failure to act because s/he is a part time worker, and the treatment cannot be objectively justified.
Where a complaint is upheld the Employment Tribunal can either:
- make a declaration as to the rights of the complainant and the employer,
- order the employer to pay compensation to the complainant; or
- order the employer to take reasonable action to reduce the adverse effect of the matter complained about.
Part time workers who satisfy the definition of employees under Section 230 of the Employment Rights Act 1996 and who are dismissed for exercising a right under the Regulations can bring a claim for unfair dismissal to the Employment Tribunal.
Workers who are not employees will be able to bring a complaint that they have been subjected either to less favourable treatment or to a detriment.
In either case the part time worker will have to make an application to the Employment Tribunal within three months of the less favourable treatment or detriment occurring or where the claim relates to a dismissal (see below), beginning with the effective date of any dismissal.
A part time employee will be regarded as having been unfairly dismissed under the Regulations and be entitled to the corresponding remedies if s/he is dismissed for any of the following reasons:
- that s/he has brought proceedings against you under the Regulations;
- that s/he has requested a written statement of reasons for less favourable treatment from you;
- that s/he has given evidence in connection with proceedings under the Regulations brought by another worker;
- that s/he has acted in accordance with the Regulations in relation to you or any other person;
- that s/he has alleged that you have breached the Regulations;
- that s/he has refused or has proposed to refuse to forgo a right conferred on him/her under the Regulations; or
- that you believe or suspect that the worker has done or intends to do any of the above.
Equally a part time worker who is not an employee but who has suffered a detriment or less favourable treatment, such as having a temporary assignment terminated for any of the above reasons, will be able to make a complaint to the Employment Tribunal for a declaration, compensation or an order stating that you must take action to reduce the effect of the matter complained of.
However it should be noted that the Regulations do not prevent you from rewarding workers who have performed well. For example two workers, one engaged full time and the other part time, will not necessarily be entitled to receive the same rate of pay if you are able to argue that it is justified in paying them at different rates on the grounds of a performance related pay scheme. If the 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.
What if I only offer a contributory pension scheme to full time workers?
If you offer full time workers access to contributory pension schemes you will have to provide the same to part timers as well. For example, an employer employing full time and part time drivers who in the past denied part time drivers access to their contributory company pension scheme must now revise their scheme rules to ensure that they comply with the legislation.
What is best practice regarding part time work?
Members should consider making a wider range of jobs available part time, consider requests for job-sharing and consider requests to change from full time to part time work. In addition the Regulations will have an impact on employees returning to work from maternity leave. Although there is currently no legal right for a worker to change his or her hours of work, there have been legal cases concerning employees returning to their employer from maternity leave, where the courts have ruled that refusing them part time hours was indirect sex discrimination. As a result, members must think carefully whether there is a sufficient reason for refusing such a request, for example the size and resources of a company. If you allow an employee to return to work on a part time basis after maternity leave you must ensure that the employee is retained on the same terms and conditions as she was previously, if not, the employee could successfully pursue a claim in the Employment Tribunal for breach of the Regulations.