Sue Nickson of Hammonds answers key question on the
rights and protection afforded to part-time workers, such as entitlements to
paid holiday and pro-rated benefits.
A
recent Court of Appeal's decision in the case of Matthews v Kent & Medway
Fire Authority may have caused you some confusion over the rights and
protection afforded to part-time workers in the workplace. Here are answers to
some key questions.
Q
What key legislation protects part-time staff?
A
Part-time staff are essentially protected under the Part-time Workers
(Prevention of Less Favourable Treatment) Regulations 2000 (PTW regulations)
which came into force in July 2000. They make it unlawful to treat part-timers
any less favourably than full-time staff unless the employer has objective
justification for such treatment.
They
protect staff regardless of their length of employment and the number of hours
they work. And they apply to any worker contracted for less hours than would
normally be regarded as full-time hours for that employment.
As
with other discrimination laws, there is no statutory ceiling to the damages a tribunal
may award in favour of a part-time worker if an employer is found to have
breached the regulations without objective justification.
The
introduction of this legislation in 2000 was an important milestone for
part-time workers. Prior to that the only protection available to part-time
workers was to allege indirect sex discrimination under the Sex Discrimination
Act 1975.
Q
Who would be an appropriate comparator for a worker making a claim under the
regulations?
A
A part-time worker can compare themselves with a full-timer who works
"under the same type of contract" (Regulation 2(3)) and is employed
"in [the] same or broadly similar work" with regard to skills,
qualification and experience (Regulation 2(4)). The PTW regulations do not
provide for a comparison with a hypothetical comparator. But they do allow a
full-time worker, who has either seamlessly or following an absence of a
maximum of 12 months, become a part-timer, to compare their treatment with the
way they were treated when they worked full-time. This important issue of a
comparator has been the subject of the first major appelate decision regarding
the PTW regulations.
In
the case of Matthews and ors v Kent and Medway Towns Authority and ors, 12,000
part-time firefighters claimed they had been treated less favourably than the
full-time staff with regards to pension rights and other benefits.
For
the purposes of comparison under the PTW regulations, they claimed parity of
terms with the full-timers. The tribunal found, as did the EAT, that although
both were engaged on a particular type of contract, the part-timers had failed
to prove they were engaged under the same type of contract as the full-time
staff (as required by Regulation 2(3)). They also failed to prove they were
engaged in the same or broadly the same work as their full-time colleagues (as
required by Regulation 2(4)).
This
decision was viewed as somewhat harsh as it seemed to restrict the application
of the PTW regulations by making it more difficult for part-time workers to compare
themselves with full-time workers for the purposes of seeking equal treatment
under the PTW regulations.
But
the recent decision by the Court of Appeal has overturned the first part of
that decision, and found that both full-time and part-time workers were engaged
on the same type of contracts. It found, however, that there were sufficient
differences in the actual work carried out so as to prevent the part-time
workers complying with Regulation 2(4). This decision bodes well for part-time
staff seeking future redress under the PTW regulations, but is cold comfort for
the firefighters themselves.
Q
Are part-time workers entitled to holiday?
A
Part-time workers are entitled to paid holiday under both the Working Time
Regulations 1998 (WTR) and the PTW regulations. Under the WTR, all workers are
entitled to four weeks' paid holiday per year, and under the PTW regulations,
part-time workers have the right not to be treated less favourably on account
of their part-time status. Consequently, if a full-time employee working five
shifts a week is entitled to 20 days' paid holiday, a part-timer working
two-and-a half shifts per week is entitled to 10 days' paid holiday.
Q
If full-timers get private medical insurance and company cars, should they be
offered to part-timers?
A
Under the PTW regulations, part-time workers should given the same access
to benefits as their comparable full-time colleagues on a pro-rata basis. In
some cases, such as salary and holidays, this will be simpler to quantify. But,
with other benefits such as insurance and company cars, it is more complex, and
the employer will have to prove that there is an objective justifiable reason
for withholding the benefit from the part-time worker. The fact that the
benefit cannot be calculated on a pro-rata basis is not sufficient
justification.
An
employer must show that it has considered each benefit in turn and that it is
justifiable, taking into account the company's size and resources to withhold
the benefit. The guidance to the PTW regulations suggests employers consider
other ways to apply these benefits to part-time workers. For example, the
guidance suggests employers calculate the financial value of a company car and
add the pro- rata value to the part-time worker's remuneration.
By
Sue Nickson, partner and head of employment law, Hammonds
