Part-time Workers Regulations 2000: An EOR guide
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 came into force on 1 July 2000.
The Regulations, made under the Employment Relations Act, belatedly implement the EC Part-Time Work Directive 97/81, which in turn implements the European framework agreement on part-time work (EOR 74). The Directive should have been implemented by 7 April 2000.
The Regulations prohibit discrimination against part-time workers unless the treatment is justified on objective grounds. Complaints can be brought to employment tribunals. Introducing the Regulations in the House of Commons, the Minister for Competitiveness, Alan Johnson, said that its basic aim was "to make it unlawful for employers to treat part-timers less favourably than comparable full-timers. That will ensure that part-timers have a right to receive the same treatment as comparable full-timers: the same hourly rate of pay; the same access to occupational pension schemes; the same access to training; the same entitlement to annual leave, as well as parental and maternity leave on a pro rata basis as comparable full-timers."
There were a number of changes made by the Government to the Regulations which were published as a consultative draft in January 2000 (EOR 90). The scope of the Regulations was extended from that originally proposed so as to include "workers" under contracts for services as well as "employees". This brings into scope casual workers, agency workers and homeworkers, who might otherwise have been excluded. However, the Regulations define the scope of permissible comparisons extremely narrowly, though special rights are conferred on those moving after absence such as maternity leave from full-time posts to part-time.
Principle of non-discrimination
The new legislation deals with discrimination against part-time workers on grounds that they work part-time. Because part-time work is overwhelmingly done by women, for many years trade unions and others advising women have brought discrimination claims on behalf of part-time workers under sex discrimination legislation, and there is now a large body of case law at both national and European level on indirect discrimination against part-timers.
Implementation of the Part-time Workers Regulations dispenses with the need to show disparate impact on women. A part-time worker who is treated less favourably than a full-time worker, and who otherwise falls within the scope of the Regulations, is now able to bring a claim regardless of whether they are a man or a woman. However, given the narrow way in which the Regulations have been drafted, and the mismatch between the two legal rights in a number of respects, it is likely that women in future will be advised routinely to bring claims both under sex discrimination law and under the Part-time Workers Regulations.
Guidance
The Government dropped its original plan to publish a Code of Practice on employing part-time workers. Instead, the Department of Trade and Industry has issued "compliance guidance" and "best-practice guidance". This is available on the internet at www.dti.gov.uk/er/ptime.htm. The guidance will have no formal status, but experience with comparable guidance issued by the Secretary of State on matters to be taken into account in determining questions relating to the definition of disability under the Disability Discrimination Act suggests that it will be referred to and relied upon by tribunals where appropriate. The compliance guidance is published as an annex to this article.
The Government also published "Notes to the Part-time Work Regulations", summarising the implications of some of the main changes. This is reproduced in the box below. The notes (and, to a large extent, the guidance) say little more in substance than that part-time workers should not be less favourably treated than full-time workers unless this is objectively justified.
Part-time Workers Regulations 2000
Part I - General and interpretation
Citation, commencement and interpretation
1. -
(1) These Regulations may be cited as the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and shall come into force on 1 July 2000.
(2) In these Regulations -
"the 1996 Act" means the Employment Rights Act 1996;
"contract of employment" means a contract of service or of apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;
"employee" means an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under a contract of employment;
"employer", in relation to any employee or worker, means the person by whom the employee or worker is or (except where a provision of these Regulations otherwise requires); where the employment has ceased, was employed;
"pro rata principle" means that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker;
"worker" means an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires); where the employment has ceased, worked under -
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
(3) In the definition of the pro rata principle and in regulations 3 and 4 "weekly hours" means the number of hours a worker is required to work under his contract of employment in a week in which he has no absences from work and does not work any overtime or, where the number of such hours varies according to a cycle, the average number of such hours.
The definition of those who are covered by the Regulations was extended from the consultative draft to include "workers" as well as "employees". The definition of "worker" is the same as that in the National Minimum Wage Act, and thus covers some non-employees employed on contracts for services and some casual workers.
As we pointed out in EOR 90, this change in scope was probably necessary to comply with the requirements of the Framework Agreement. This refers to "part-time workers", and specifies that it is to apply to "part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State." Thus, the Agreement covers not only workers with a contract of employment, but also those with an "employment relationship" as "defined by law" in the Member State. It is strongly arguable that coverage restricted to "employees" would not satisfy this definition. Therefore, suggestions that the extended definition is unnecessary "gold-plating" of the Directive are misguided.
Meaning of full-time worker, part-time worker, and comparable full-time worker
2. -
(1) A worker is a full-time worker for the purpose of these Regulations if he 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 identifiable as a full-time worker.
(2) A worker is a part-time worker for the purpose of these Regulations if he 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.
(3) For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract -
(a) employees employed under a contract that is neither for a fixed term nor a contract of apprenticeship;
(b) employees employed under a contract for a fixed term that is not a contract of apprenticeship;
(c) employees employed under a contract of apprenticeship;
(d) workers who are neither employees nor employed under a contract for a fixed term;
(e) workers who are not employees but are employed under a contract for a fixed term;
(f) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.
(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place -
(a) both workers are -
(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 Regulations define the scope of permissible comparisons very narrowly. In order even to bring a complaint, the worker must be (a) employed by the same employer as the comparator; (b) under the same type of contract; (c) on broadly similar work.
Same type of contract
A key limitation in the Regulations is the general principle that comparisons will only be permitted between workers employed on the same type of contract. The definition of what is to be regarded as "different types of contract" is set out in reg. 2, as is the definition of full-time and part-time worker.
So far as the latter is concerned, there is no general definition in terms of number of hours worked. Who is to be identified as a "full-time" worker and who is a "part-time" worker is made firm-specific. It is to be determined having regard to the "custom and practice of the employer". There is much to be said for this from a common-sense standpoint. If employer "A" treats those working under 20 hours per week differently from those working more than 20 hours, a statutory dividing line set at 16 hours, for example, would unfairly disadvantage those working between 17 and 20 hours. It follows, however, that a worker employed for a given number of hours per week may be regarded as a full-time worker or a part-time worker depending on the particular employer for whom they are working.
The Regulations limit the scope of comparisons to those employed under the same type of contract. The six relevant categories are set out in reg. 2(3). They distinguish between "employees" and "workers", and between those employed under fixed-term contracts and those who are not. Given that the contractual arrangements of part-time workers often differ from those of full-timers, even if they are doing similar work, this is a major restriction on the potential impact of the Regulations. Thus, although the coverage of the Regulations has been extended to cover "workers", a part-time "worker" on a contract for services, who would have been excluded per se from claiming by the original proposals, will remain excluded from claiming unless there is a full-time worker on a comparable contract for services.
The limitation based on whether the employee or worker is employed under a fixed-term contract is puzzling. EU Directive 99/70 on fixed-term work, awaiting implementation by the UK, prohibits discrimination against those employed on fixed-term contracts in comparison with the treatment of comparable permanent workers. It is difficult to reconcile this with a statutory provision which precludes a comparison between those employed (part-time) on a fixed-term contract and those employed (full-time) on a permanent contract.
More generally, reg. 2(3) represents the apotheosis of the like-for-like comparison principle, a fundamentally restrictive notion which has assumed ever-increasing prominence in both statute and discrimination case law. As the Part-time Workers Regulations graphically illustrate, requiring a claimant to show that the circumstances are like-for-like as a prerequisite to bringing a complaint means that there may be no remedy against discrimination on the prohibited grounds even where the employer has no good justification for the different treatment. Thus, under the Regulations, an employer can continue to deliberately single out part-time workers for unfavourable treatment in respect of fringe benefits, for example, so long as no full-time workers are employed on the same type of contract. This provides an incentive for employers to treat part-time workers differently so far as concerns their contractual status, which runs counter to the ethos of the Framework Agreement.
Presumably, the reason why the distinction is drawn between different types of contract is that the Government considered that this represented a justification for treating people differently. If so, the Regulations simply could have provided that differences in the type of contract would be a potential defence for discrimination, where a tribunal found that it was objectively justified.
Same employer
Regulation 2(4) further limits the potential scope of claims by requiring that both the applicant and his or her comparator must be employed by the "same employer". Unlike the Equal Pay Act, there is no scope for an applicant to use a comparator employed by an "associated employer". The full-time worker must also be based at the "same establishment" as the part-time worker, unless there is no comparable full-time worker at that establishment. In that case, the comparable full-time worker can be based at another establishment of the same employer.
This definition rules out hypothetical comparisons as to how the part-time worker would be treated, unlike the Sex Discrimination Act (except, as discussed below, where a full-time worker becomes part-time). The Minister for Competitiveness explained that the Government believed that for a hypothetical comparator to be introduced "would have been disproportionate to the problem and unnecessarily onerous on business."
The Regulations also rule out comparisons with a full-time employee employed by another employer where the labour market is segregated, even though the Framework Agreement specifies 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."
Same or broadly similar work
Yet another limitation on potential comparisons is imposed by reg. 2(4)(a)(ii). The part-time worker can only compare his or her treatment with a full-time worker if both workers are "engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience". The burden will be on the part-time worker to establish this similarity, in contrast to the Equal Pay Act where it is for the applicant to show the same or broadly similar work, but it is for the employer to show relevant differences in the personal equation such as qualifications and experience.
The Secretary of State for Trade and Industry, Stephen Byers, explained that his general intention was that "the Regulations will be introduced with a light touch by ensuring that comparisons can only be made between part-time and full-time workers with the same type of contract." There is, of course, no such restriction under EU equal pay and sex discrimination law on the claims that can be brought by a part-time worker. The inevitable result of Mr Byers's "light touch" will be that employers will now have to defend two sets of proceedings, raising different legal issues, instead of one. This is good news for lawyers, but will not be welcomed by their clients.
Workers becoming part-time
3. -
(1) This regulation applies to a worker who -
(a) was identifiable as a full-time worker in accordance with regulation 2(1); and
(b) following a termination or variation of his contract, continues to work under a new or varied contract, whether of the same type or not, that requires him to work for a number of weekly hours that is lower than the number he was required to work immediately before the termination or variation.
(2) Notwithstanding regulation 2(4), regulation 5 shall apply to a worker to whom this regulation applies as if he were a part-time worker and as if there were a comparable full-time worker employed under the terms that applied to him immediately before the variation or termination.
(3) The fact that this regulation applies to a worker does not affect any right he may have under these Regulations by virtue of regulation 2(4).
Although the general rule is that self-comparison is not permitted by the Regulations, there are important exceptions to the rule in the case of full-time workers who become part-time.
Regulation 3 is a deeming provision which applies to full-time workers who cease to work as full-timers, and who start to work fewer hours after a variation to their contract, or after a termination and re-engagement. Such workers are deemed to be part-time workers for the purposes of the Regulations and do not have to identify another full-time worker with the same type of contract (although they are not precluded from so doing). They also have the right to use their own applicable full-time terms immediately before the termination or variation as a reference point.
Workers returning part time after absence
4. -
(1) This regulation applies to a worker who -
(a) was identifiable as a full-time worker in accordance with regulation 2(1) immediately before a period of absence (whether the absence followed a termination of the worker's contract or not);
(b) returns to work for the same employer within a period of less than 12 months beginning with the day on which the period of absence started;
(c) returns to the same job or to a job at the same level under a contract, whether it is a different contract or a varied contract and regardless of whether it is of the same type, under which he is required to work for a number of weekly hours that is lower than the number he was required to work immediately before the period of absence.
(2) Notwithstanding regulation 2(4), regulation 5 shall apply to a worker to whom this regulation applies ("the returning worker") as if he were a part-time worker and as if there were a comparable full-time worker employed under -
(a) the contract under which the returning worker was employed immediately before the period of absence; or
(b) where it is shown that, had the returning worker continued to work under the contract mentioned in sub-paragraph (a) a variation would have been made to its terms during the period of absence, the contract mentioned in that sub-paragraph including that variation.
(3) The fact that this regulation applies to a worker does not affect any right he may have under these Regulations by virtue of regulation 2(4).
This important provision allows a self-comparison by a full-time worker who returns to work part-time after absence of no longer than 12 months. It will cover those returning from maternity leave or parental leave, as well as those returning to a part-time post after illness, and those returning from a career break or sabbatical. Although not a right to return to work part time, it does provide at least a modicum of protection for those who do return to work on a part-time basis.
The main prerequisite is that the worker must return to a part-time post which is either the same job or a job "at the same level" under the contract, even though it does not need to be of "the same type". As with a worker who becomes part time after a variation or dismissal, a worker who returns from absence to a part-time post essentially makes a self-comparison with how they would have been treated if they were still working in the full-time post in which they were previously employed. In this case, this includes standard changes which have occurred during their absence period.
Part II Rights and remedies
Less favourable treatment of part-time workers
5. -
(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if -
(a) the treatment is on the ground that the worker is a part-time worker; and
(b) the treatment is not justified on objective grounds.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.
(4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.
The core of the Regulations is the principle of non-discrimination. The wording of this is unaltered from the consultative draft. Regulation 5 sets out the wide-ranging general principle that a part-time worker has the right not to be treated less favourably than the employer treats a comparable full-time worker. The potential impact of this principle is then limited by the Regulations in general, and reg. 5(2) in particular.
Note that less favourable treatment is made unlawful only if it is "on the ground" that the employee is a part-timer. This may be contrasted with treatment that is "related to" or "connected with" their status, as in the case of pregnancy rights. The wording is similar to that in s.1(1)(a) of the Sex Discrimination Act. Inevitably, this wording will raise issues of causation, though on discrimination case law as it now stands it suffices if the prohibited ground was an "important factor" in an employer's decision. It is not necessary for it to be the sole reason.
Justification
Even if the treatment is on the ground that the employee works part time, the Regulations provide that it can be justified on objective grounds. This is in accord with the Part-time Workers Framework Agreement, but it means that, like the Disability Discrimination Act, this new legislation will allow for direct discrimination on the basis of the prohibited ground to be justified by the employer. This contrasts with the old-style discrimination legislation, such as the Sex Discrimination and Race Relations Acts, where direct discrimination can only be justified where there is a genuine occupational qualification.
So far as part-time workers are concerned, what constitutes "objective" grounds for a difference in treatment is left at large by the Regulations. The notes issued by the DTI with the Regulations (see box below) state unequivocally that "less favourable treatment will only be justified on objective grounds if it can be shown that the less favourable treatment: (1) is to achieve a legitimate objective, for example, a genuine business objective; (2) is necessary to achieve that objective; and (3) is an appropriate way to achieve the objective." This accords with the language of EU Directive 97/80 on the burden of proof in sex discrimination cases, which has to be implemented in the UK by 1 January 2001. This provides that it is for the employer to show that an indirectly discriminatory measure is "appropriate and necessary and can be justified by objective factors unrelated to sex." However, this wording is directed to cases of indirect discrimination, where the adverse impact is often (and, arguably, by definition) inadvertent. In the case of discrimination against part-time workers on grounds of their status, the discrimination is direct and, presumably, deliberate. Given this, one might expect an even more stringent test of justification to be appropriate.
A key question which will have to be determined is whether the cost of providing a benefit for a part-timer worker will be regarded as an objective justification for discrimination. Our view is that this is unlikely to be an acceptable defence where the proportionate cost of including part-timers is no greater than for full-timers. It is a general principle that the cost of not discriminating should not be regarded as a justification for discriminating, without more. However, where the cost of not discriminating is disproportionate, different considerations are likely to apply. For example, providing full healthcare coverage for a worker employed one day a week and his or her family might be seen as imposing a disproportionate cost on the employer.
Pro rata principle
This likely distinction is reinforced by the principle of pro rata temporis, incorporated in reg. 5 and allowed for in the Directive. A part-time worker is entitled prima facie to equal rates of pay and other benefits to full-timers but only in proportion to the hours per week worked. Regulation 5(3) says this principle shall be applied "unless it is inappropriate". Provision of a company car is likely to be one example where it would be inappropriate to use a pro rata principle.
There is a specific limitation in respect of overtime in reg. 5(4). Part-time workers do not have a right to claim that they have been discriminated against if they are not eligible for premium overtime rates when they exceed their own part-time hours of work. This is in accordance with the ruling of the European Court of Justice in Stadt Lengerich v Helmig (EOR 60) that there is no discrimination contrary to European Community law where a collective agreement provides that overtime supplements will be paid only when the normal working hours for full-time employees are exceeded.
Right to receive a written statement of reasons for less favourable treatment
6. -
(1) If a worker who considers that his employer may have treated him in a manner which infringes a right conferred on him by regulation 5 requests in writing from his employer a written statement giving particulars of the reasons for the treatment, the worker is entitled to be provided with such a statement within 21 days of his request.
(2) A written statement under this regulation is admissible as evidence in any proceedings under these Regulations.
(3) If it appears to the tribunal in any proceedings under these Regulations -
(a) that the employer deliberately, and without reasonable excuse, omitted to provide a written statement, or
(b) that the written statement is evasive or equivocal,
it may draw any inference which it considers it just and equitable to draw, including an inference that the employer has infringed the right in question.
(4) This regulation does not apply where the treatment in question consists of the dismissal of an employee, and the employee is entitled to a written statement of reasons for his dismissal under s.92 of the 1996 Act.
This new right combines elements of the questionnaire procedure under sex, race and disability discrimination law and the right to a written statement of reasons for dismissal. The Government regards the procedure as "an important stopping-off point short of a claim being made in a tribunal."
What appears to be envisaged is that part-time workers who regard themselves as being less favourably treated in a particular respect can ask for an explanation as to the reasons for the treatment. Following the consultative process, the Regulations now provide that the employee's request has to be in writing. However, the worker is not under any obligation to particularise the complaint. Nor, contrary to the news release issued by the DTI, which asserted that "part-timers who believe they have been treated unfairly must now request a statement in writing", is there any obligation on the employee to make such a request.
The employer has 21 days to provide a "written statement giving particulars of the reasons for the treatment". This language is borrowed from the Employment Rights Act but its meaning is less clear in this context. Is the aim to determine whether the grounds for the treatment are the employee's part-time status or some other reason? Or is the employee entitled to be told not just the reason for the treatment as such - viz that they work part-time - but also the employer's justification for the treatment? If the former, the right will be of limited use. If the objective grounds justifying a difference in treatment have to be set out, which is the more likely meaning of the provisions, employers may want to consult with their lawyers before replying. Regulations 6(2) and (3) stipulate that a written statement is "admissible as evidence" in any proceedings and that a tribunal is entitled to draw inferences from a written statement which is "evasive or equivocal". In the case of a query raising complex issues, such as "why are part-time workers not given access to your share option scheme?", 21 days may prove to be a very short period in which to furnish a careful reply. Prudent employers will be reviewing their terms and conditions proactively and working out in advance any objective justification for policies which treat part-time workers less favourably.
Unfair dismissal and the right not to be subjected to detriment
7. -
(1) An employee who is dismissed shall be regarded as unfairly dismissed for the purposes of Part X of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).
(2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on a ground specified in paragraph (3).
(3) The reasons or, as the case may be, grounds 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).
(4) Where the reason or principal reason for dismissal or, as the case may be, ground for subjection to any act or deliberate failure to act, is that mentioned in paragraph (3)(a)(v), or (b) so far as it relates thereto, neither paragraph (1) nor paragraph (2) applies if the allegation made by the worker is false and not made in good faith.
(5) Paragraph (2) does not apply where the detriment in question amounts to the dismissal of an employee within the meaning of Part X of the 1996 Act.
Like other recent legislation in the employment field, this provision treats victimisation by the employer for exercising rights under the Regulations both as automatically unfair grounds for dismissal and as detrimental treatment.
However, because only an "employee" currently has the right to complain of unfair dismissal, reg. 7(1) refers to an "employee", whereas reg. 7(2) protects a "worker" against being subjected to a detriment. Similarly, the overlap avoidance provision in reg. 7(5) refers to an "employee". Therefore, a worker who is not an employee and who is dismissed for exercising rights under the Regulations will be able to complain that they have been subjected to a detriment.
The wording of reg. 7 is drawn mainly from the discrimination statutes and, in common with them, the protection against victimisation does not apply where a worker's allegation that their rights have been infringed is "false and not made in good faith."
Complaints to employment tribunals etc
8. -
(1) Subject to regulation 7(5), a worker may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation 5 or 7(2).
(2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months (or, in a case to which regulation 13 applies, six months) beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.
(3) A tribunal may consider any such complaint which is out of time if in all the circumstances of the case, it considers that it is just and equitable to do so.
(4) For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (2) -
(a) where a term in a contract is less favourable, that treatment shall be treated, subject to paragraph (b), as taking place on each day of the period during which the term is less favourable;
(b) where an application relies on regulation 3 or 4 the less favourable treatment shall be treated as occurring on, and only on, in the case of regulation 3, the first day on which the applicant worked under the new or varied contract and, in the case of regulation 4, the day on which the applicant returned; and
(c) a deliberate failure to act contrary to regulation 5 or 7(2) shall be treated as done when it was decided on.
(5) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of paragraph (4)(c) to decide not to act -
(a) when he does an act inconsistent with doing the failed act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to have done the failed act if it was to be done.
(6) 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.
(7) Where an employment tribunal finds that a complaint presented to it under this regulation is well founded, it shall take such of the following steps as it considers just and equitable -
(a) making a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates;
(b) ordering the employer to pay compensation to the complainant;
(c) recommending that the employer take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates.
(8) Where a tribunal finds a complaint to be well founded on the ground that the complainant has been treated less favourably in respect of either the terms on which he is afforded access to membership of an occupational pension scheme or his treatment under the rules of such a scheme. the steps taken by a tribunal under paragraph (7) as regards that less favourable treatment shall not relate to a period earlier than two years before the date on which the complaint was presented.
(9) Where a tribunal orders compensation under paragraph (7)(b), the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances (subject to paragraph (8)) having regard to -
(a) the infringement to which the complaint relates; and
(b) any loss which is attributable to the infringement having regard, in the case of an infringement of the right conferred by regulation 5, to the pro rata principle except where it is inappropriate to do so.
(10) The loss shall be taken to include -
(a) any expenses reasonably incurred by the complainant in consequence of the infringement; and
(b) loss of any benefit which he might reasonably be expected to have had but for the infringement.
(11) Compensation in respect of treating a worker in a manner which infringes the right conferred on him by regulation 5 shall not include compensation for injury to feelings.
(12) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.
(13) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
(14) If the employer fails, without reasonable justification, to comply with a recommendation made by an employment tribunal under paragraph (7)(c) the tribunal may, if it thinks it just and equitable to do so -
(a) increase the amount of compensation required to be paid to the complainant in respect of the complaint, where an order was made under paragraph (7)(b); or
(b) make an order under paragraph (7)(b).
A part-time worker's right not to be less favourably treated is enforceable through an employment tribunal complaint. The normal three-month time limit from the date of the act complained of applies, and the tribunal has discretion to extend the time period where it is just and equitable to do so. Provision is made for continuing acts of less favourable treatment.
Regulation 8(6) is unusual. It provides that "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." This links in with the right established by reg. 6 to receive a written statement of the reasons for less favourable treatment.
The remedies open to an employment tribunal where a complaint is upheld are the same as for sex, race and disability discrimination, except that reg. 8(11) expressly precludes an award for injury to feelings.
Like s.2(5) of the Equal Pay Act as amended by the Occupational Pension Schemes (Equal Access to Membership) Regulations 1976, reg. 8(8) places a two-year limit on the remedy of a worker who successfully complains about less favourable treatment in respect of access to occupational pension schemes. This limit must be legally dubious in light of the decision of the European Court of Justice in the Preston case (see p.47) that the two-year limitation in s.2(5) is contrary to EU sex discrimination law because the rule prevents the entire record of service completed by those concerned from being taken into account for the purposes of calculating pension benefits. It is true that the Preston decision concerned indirect sex discrimination against women rather than direct discrimination against part-time workers. This is unlikely to be a meaningful distinction in practice, if for no other reason than that part-time workers will be advised to bring their complaints both under the new Regulations and under sex discrimination/equal pay law.
Restrictions on contracting out
9. Section 203 of the 1996 Act (restrictions on contracting out) shall apply in relation to these Regulations as if they were contained in that Act.
Section 203 of the Employment Rights Act contains the standard provisions rendering void any attempt to contract out of rights, except where this is done in accordance with a conciliated settlement or a valid compromise agreement.
Part III Miscellaneous
Amendments to primary legislation
10. The amendments in the Schedule to these Regulations shall have effect.
SCHEDULE
Amendments to primary legislation
1. The Employment Tribunals Act 1996 shall be amended as follows
(a) In s.18(1) (cases where conciliation provisions apply) -
(i) at the end of paragraph (ff), the word "or" shall be omitted, and
(ii) after paragraph (g), there shall be inserted -
"or"
(h) arising out of a contravention, or alleged contravention of regulation 7(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000."
(b) In s.21 jurisdiction of the Employment Appeal Tribunal) in subsection (1) (which specifies the proceedings and claims to which the section applies) -
(i) at the end of paragraph (h),the word "or" shall be omitted.
(ii) alter paragraph (i) there shall be inserted -
"or"
(j) the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
2. -
(1) In s.105 of the 1996 Act (redundancy as unfair dismissal) in subsection (1)(c) (which requires one of a specified group of subsections to apply for a person to be treated as unfairly dismissed) for "(7D)" there shall be substituted "(7E)" and after subsection (7D) there shall be inserted -
"(7E) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (unless the case is one to which paragraph (4) of that regulation applies)."
(2) In s.108 of the 1996 Act (exclusion of right: qualifying period of employment) in subsection (3) (cases where no qualifying period of employment is required) the word "or" at the end of paragraph (h) shall be omitted and after paragraph (hh) there shall be inserted -
"or
(i) paragraph (1) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applies.
(3) In s.109 of the 1996 Act (exclusion of right: upper age limit) in subsection (2) (cases where upper age limit does not apply) the word "or" at the end of paragraph (h) shall be omitted and after paragraph (hh) there shall be inserted -
"or
(i) paragraph (1) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applies."
Paragraph 2(2) of the Schedule makes clear that there is no one year qualifying period in respect of the protection against being unfairly dismissed by reason of the worker exercising his or her rights under the Regulations.
Paragraph 2(1) of the Schedule adds a further circumstance in which an employee dismissed by reason of redundancy is to be regarded as unfairly dismissed.
Paragraph 2(3) specifies that the upper age limit does not apply to dismissal complaints brought under the Regulations.
Liability of employers and principals
11. -
(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as also done by his employer, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for the employer with the authority of the employer shall be treated for the purposes of these Regulations as also done by the employer.
(3) In proceedings under these Regulations against any person in respect of an act alleged to have been done by a worker of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the worker from -
(a) doing that act; or
(b) doing, in the course of his employment, acts of that description.
This wording is virtually identical to that in s.58 of the Disability Discrimination Act.
Part IV Special classes of person
Crown employment
12.
(1) Subject to regulation 13, these Regulations have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees and workers.
(2) In paragraph (1) "Crown employment" means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision.
(3) For the purposes of the application of the provisions of these Regulations in relation to Crown employment in accordance with paragraph (1) -
(a) references to an employee and references to a worker shall be construed as references to a person in Crown employment to whom the definition of employee or, as the case may be, worker is appropriate; and
(b) references to a contract in relation to an employee and references to a contract in relation to a worker shall be construed as references to the terms of employment of a person in Crown employment to whom the definition of employee or, as the case may be, worker is appropriate.
Armed forces
13. -
(1) These Regulations shall have effect in relation -
(a) subject to paragraphs (2) and (3) and apart from regulation 7(1), to service as a member of the armed forces, and
(b) to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996.
(2) These Regulations shall not have effect in relation to service as a member of the reserve forces in so far as that service consists in undertaking training obligations -
(a) under s.38, 40 or 41 of the Reserve Forces Act 1980;
(b) under s.22 of the Reserve Forces Act 1996;
(c) pursuant to regulations made under s.4 of the Reserve Forces Act 1996;
or consists in undertaking voluntary training or duties under s.27 of the Reserve Forces Act 1996.
(3) No complaint concerning the service of any person as a member of the armed forces may be presented to an employment tribunal under regulation 8 unless -
(a) that person has made a complaint in respect of the same matter to an officer under the service redress procedures; and
(b) that complaint has not been withdrawn.
(4) For the purposes of paragraph (3)(b), a person shall be treated as having withdrawn his complaint if, having made a complaint to an officer under the service redress procedures, he fails to submit the complaint to the Defence Council under those procedures.
(5) Where a complaint of the kind referred to in paragraph (3) is presented to an employment tribunal, the service redress procedures may continue after the complaint is presented.
(6) In this regulation "the service redress procedures" means the procedures, excluding those which relate to the making of a report to Her Majesty, referred to in s.180 of the Army Act 1955, s.180 of the Air Force Act 1955 and s.130 of the Naval Discipline Act l957.
House of Lords staff
14. -
(1) These Regulations have effect in relation to employment as a relevant member of the House of Lords staff as they have effect in relation to other employment.
(2) In this regulation "relevant member of the House of Lords staff" means any person who is employed under a contract with the Corporate Officer of the House of Lords by virtue of which he is a worker.
House of Commons staff
15. -
(1) These Regulations have effect in relation to employment as a relevant member of the House of Commons staff as they have effect in relation to other employment.
(2) In this regulation "relevant member of the House of Commons staff" means any person -
(a)who was appointed by the House of Commons Commission; or
(b)who is a member of the Speaker's personal staff.
Police service
16. -
(1) For the purposes of these Regulations, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet shall be treated as employment, under a contract of employment, by the relevant officer.
(2) In this regulation "the relevant officer" means -
(a) in relation to a member of a police force or a special constable or police cadet appointed for a police area, the chief officer of police (or, in Scotland, the chief constable);
(b) in relation to a person holding office under s.9(1)(0) or 55(1)(1,) of the Police Act l997 (police members of the National Criminal Intelligence Service and the National Crime Squad), the Director General of the National Criminal Intelligence Service or, as the case may be, the Director General of the National Crime Squad; and
(c) in relation to any other person holding the office of constable or an appointment as a police cadet, the person who has the direction and control of the body of constables or cadets in question.
Holders of judicial office
17. These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis.
There is an express exclusion precluding judges, such as part-time tribunal chairs, from taking advantage of these Regulations.
COMPLIANCE GUIDANCE
Reorganising hours
Reorganising the hours of work is a contractual matter between employer and worker. However, in reorganising workloads, employers will need to avoid treating part-time workers less favourably than full-time staff. They should also be aware that in certain situations they may be vulnerable to claims for indirect sex discrimination.
To comply with the law:
In reorganising workloads, part-time workers should not be treated less favourably than full-time workers, unless this treatment can be objectively justified.
Promotion for part-time workers
If individual companies and the economy as a whole are to reap the full benefit of the flexibility part-time work can offer, then more types of job and levels of management must be opened to part-time workers. The process outlined below for considering requests by workers to move to part-time hours will help in this, but part-time workers should also be given equal opportunity to seek promotion. Not only is this an area where an employer could be open to a claim of less favourable treatment, but applying opportunity fairly will bring benefits to the employer.
It should also be borne in mind that part-time staff may be willing to work full-time on promotion, because the extra pay available would allow them to afford childcare or buy in the necessary help.
To comply with the law:
Previous or current part-time status should not of itself constitute a barrier to promotion to a post, whether the post is full-time or part-time.
Rate of pay
Enhanced pay (bonus pay; shift allowances; unsocial hours payments)
As a result of the regulations, part-time workers must receive the same basic pay as comparable full-time workers. They must not be given a lower hourly rate, unless justified by objective grounds.
One example where a different hourly rate might be objectively justified would be a performance-related pay scheme. If 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.
In general, the same principle applies to enhanced rates of pay. 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.
To comply with the law:
Part-time workers should receive the same hourly rate as comparable full-time workers.
Examples of complying with the law:
Bonus pay: A firm awards its workers a Christmas bonus. Its part-time workers receive a pro rata amount, depending on the number of hours they work.
Shift allowances: A store has both full-time and part-time workers, working early, day and late shifts. The early and late shifts attract time-and-a-half pay for both full-time workers and comparable part-time workers.
Unsocial hours: A part-time care assistant receives the same unsocial hours payment for working between midnight and 6 am as his comparable full-time colleague.
Overtime
Part-time workers do not have an automatic right to overtime payments once they work beyond their normal hours. Only when part-time workers have worked up to the normal hours of comparable full-time workers do they have a legal right to overtime payments.
This does not affect the right of part-time workers, where they are entitled, to receive unsocial hours payments, weekend payments or other forms of enhanced pay.
To comply with the law:
Part-time workers should receive the same hourly rate of overtime pay as comparable full-time workers, once they have worked more than the normal full-time hours.
Examples of complying with the law:
A hotel, in which full-timers work five eight-hour days per week, hits a busy period in the run-up to Christmas. It asks all its staff to work extra hours. A part-time worker who normally works 9-12 agrees to work 9-2. She receives her normal hourly rate of pay, with no overtime payment, for the additional hours. The same applies to a second part-time worker who normally works two days a week, and agrees to work four. A third part-time worker normally works three days a week, and agrees to work for five days and one evening. She receives her normal pay rate for the extra two days, but receives an overtime payment for the extra evening.
Profit sharing, share-option schemes
Participation in profit sharing and share-option schemes has sometimes been limited, and those who work part-time excluded. This can undermine one of the key aims of these benefits - to motivate staff, and make sure they have a stake in their company's future success.
The Regulations will make most exclusions of part-time staff from profit sharing or share-option schemes unlawful. Part-time workers should receive a pro rata level of benefits in line with the number of hours they work, unless their exclusion can be objectively justified.
In the case of share-option schemes, there may be cases where exclusions can be objectively justified. In particular, where the value of the share options is so small that the potential benefit to the part-timer of the options is less than the likely cost of realising them.
To comply with the law:
Part-time workers should be able to participate in profit sharing or share-option schemes available for full-time staff, unless there are objective grounds for excluding them.
The benefits that part-time workers receive under these schemes should be pro rata to those received by comparable full-time workers.
Example of complying with the law:
A retailer operates a profit sharing scheme. The benefits received are determined by the sales figures of individual workers. All staff, whether full-time or part-time, participate in the scheme.
Contractual sick and maternity pay
The Regulations apply directly to contractual sick and maternity pay. This means that there is an obligation on employers not to treat a part-time worker less favourably than a comparable full-time worker. The benefits that a full-time worker receives must also apply to part-time workers pro rata. The only exception will be if the different treatment is justified on objective grounds.
To comply with the law, part-time workers should not be treated less favourably than full-time workers in terms of:
calculating the rate of sick pay or maternity pay;
the length of service required to qualify for payment;
the length of time the payment is received.
Example of complying with the law:
A hotel worker who works two days per week has been with the hotel for seven months, when he becomes ill and is absent for two weeks. The hotel's sick-pay scheme entitles staff to full pay on certified sick leave after six months' service for up to one month of absence. The worker receives full pay (ie two days per week) for the whole of his absence.
Access to occupational pensions
Most part-time workers have had access to their employer's occupational pension scheme since 1995 as a result of the principle of "equal pay for equal work". Under this principle, employers must provide equality of access, contributions and benefits to men and women, unless the differences are attributable to a material difference other than sex. As most part-time workers are women, the majority of part-time staff already had access to pension schemes because excluding part-time workers might have represented unlawful sex discrimination against women. However, coverage was not universal. Employers could deny access to part-time workers if the exclusion could be objectively justified on grounds unrelated to sex and there was no disparate impact on women.
Under the new Regulations, employers cannot deny access to both male and female part-time workers, unless different treatment is justified on objective grounds. Scheme rules may need to be revised, to ensure that they comply with the new legislation.
To comply with the law:
Employers should not discriminate between full-time and part-time workers over access to pension schemes, unless different treatment is justified on objective grounds.
Example of complying with the law:
Before the Regulations came into effect, an employer employing full-time and part-time drivers denied the part-time drivers access to the pension scheme. This was not unlawful as men and women worked full-time and part-time in equal proportions, and so indirect sex discrimination could not be proved because there was no disparate impact on women.
Under these Regulations, the employer is required to offer the part-timers access to the pension scheme on the same basis as the full-time workers, because their exclusion cannot be justified on objective grounds.
Access to training
Access to training is essential if part-time workers are to work effectively, and employers are to make the most of their staff. There is a strong business case for making sure that staff are equipped to do their job well, and their skills are up to date. Investing in training, when well-targeted, is investing in the future of the enterprise. It also shows a commitment to workers which will pay dividends in increasing the level of staff morale and commitment to the organisation.
Part-time workers often encounter difficulty in obtaining access to training especially career-orientated development or vocational training. Either they are excluded entirely, or, though they are in theory entitled to attend, their other responsibilities prevent them from participating because of the inconvenient hours. Denying part-time workers access to training will obviously be less favourable treatment.
To comply with the law:
Employers should not exclude part-time staff from training simply because they work part-time.
Redundancy
In a redundancy situation, it used to be common practice to make part-time workers redundant before full-time workers. However, the automatic redundancy of part-time staff is likely to be unlawful on two counts: it could well infringe these Regulations to treat part-time workers less favourably than their full-time equivalents, and, since many part-time workers are women, it is likely to be a form of unlawful sex discrimination. Different treatment of full-time and part-time workers will only be lawful if it can be justified on objective grounds.
To comply with the law:
The criteria used to select jobs for redundancy should be objectively justified, and part-time workers must not be treated less favourably than comparable full-time workers.
Example of best practice:
A library employs an equal number of full-time and part-time staff. A shortage of funding forces the library to reduce the money it spends on staff. The library offers three voluntary schemes - voluntary redundancy, early retirement, and a reduction in hours. However, savings still need to be made. The library therefore looks at the level of public interest (measured by borrowings and attendance) compared both to its opening hours and to its different sections. It finds that the library is least used on the middle three days of the week, and that the fiction and reference sections have seen marked drops in their popularity. The library therefore balances demand and staff availability cover by making redundant three full-time posts and one part-time in the fiction and reference sections, and two part-time posts covering Tuesday to Thursday.
Other benefits: health insurance; subsidised mortgages; staff discounts
Where possible, these and similar benefits should be provided pro rata. In some cases, this may prove difficult. In the case of a benefit such as health insurance, which cannot easily be divided, employers will have to decide whether to withhold it from part-time workers. Employers may decide that the cost of extending a benefit such as health insurance to part-time workers would be prohibitive. However, it will not be enough for employers to show that a benefit could not be applied pro rata. They must also show that the decision is justified on objective grounds.
To comply with the law:
Benefits such as subsidised mortgages and staff discounts should be applied to part-time workers, unless an exception is justified on objective grounds.
Where a benefit, such as health insurance, cannot be applied pro rata, this is not of itself an objective justification for denying it to part-time workers. The less favourable treatment of part-time workers will still need to be justified on objective grounds. These might include the disproportionate cost to the organisation of providing such a benefit, or the imperative to meet a real need of the organisation.
Example of complying with the law:
A finance company provides staff mortgages at a reduced rate of interest for all staff both full-time and part-time. The same preferential rate of interest applies regardless of hours worked and likewise the same multiplier to determine the mortgage advance.
Leave/holidays/breaks: annual leave, maternity and parental leave; career breaks
Part-time workers, like their full-time colleagues, are entitled to a minimum of statutory annual leave, maternity leave, and parental leave. Many of these entitlements are extended or enhanced by contractual conditions. Part-time workers should have the same leave entitlements pro rata as their full-time colleagues.
To comply with the law:
The holiday entitlement of part-time staff should be pro rata to that of full-time workers.
Contractual maternity leave and parental leave should be available to part-time workers as well as full-time workers.
Career break schemes should be available to part-time workers in the same way as for full-time, unless their exclusion is objectively justified on grounds other than their part-time status.
Example of complying with the law:
Holiday entitlement: An engineering firm allows its workers 21 days' holiday a year. A part-time worker who works every afternoon, or the equivalent of two-and-a-half days a week, is entitled to 10-and-a-half days' holiday.
Contractual maternity and parental leave: A health authority provides its workers with four weeks' extra paid maternity leave, on top of their statutory entitlement. A part-time worker who works 20 hours a week will be entitled to the full four weeks (of 20 hours) in extra paid maternity leave.
Career break: A retail store allows its workers a career break of up to two years. The qualifying period for the break is three years. A part-time worker is entitled to a two-year break under the same conditions as a full-time worker.
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These notes are not exhaustive. They cover the main changes brought in by the Government's proposals on part-timers. They only occasionally cross-reference to existing legislation, such as the Sex Discrimination Act 1975, which already covers part-timers. Fuller guidance will be available on the DTI website at: www.dti.gov.uk/er/ptime.htm. Rate of pay The Regulations have a direct effect on pay. As a result of the Regulations, part-timers must not receive a lower basic rate of pay than comparable full-timers. Part-timers can only be given a lower hourly rate when this is justified on objective grounds. One example where a different hourly rate might be objectively justified would be a performance-related pay scheme. If employees 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. To comply with the law: Part-timers should receive the same hourly rate as comparable full-timers.
Overtime As case law currently stands, part-timers do not have an automatic right to overtime payments once they work beyond their normal hours. However, once part-timers have worked up to the full-time hours of comparable full-timers they do have a legal right to overtime payments where these apply. To comply with the law: Part-timers should receive the same hourly rate of overtime pay as comparable full-timers, at least once they have worked more than the normal full-time hours.
Contractual sick and maternity pay The Regulations apply directly to contractual sick and maternity pay. This means that there is an obligation on employers not to treat a part-timer less favourably than a comparable full-timer. The benefits that a full-timer receives must also apply to part-timers pro rata. The only exception will be if the different treatment is justified on objective grounds. To comply with the law, part-timers should not be treated less favourably than comparable full-timers in terms of: Calculating the rate of sick pay or maternity pay.
The length of service required to qualify for payment.
The length of time the payment is received.
Occupational pensions Scheme rules may need to be revised, to ensure that they comply with the new legislation. To comply with the law: Employers must not discriminate between full-time and part-timers over access to pension schemes, unless different treatment is justified on objective grounds.
Access to training Under the Regulations, there is an obligation on employers not to exclude part-timers from training. Training will need to be structured wherever possible to be at the most convenient times for the majority of staff including part-timers. To comply with the law: Employers should not exclude part-time staff from training simply because they work part-time.
Training should be scheduled so far as possible so that staff including part-timers, can attend.
Leave/holidays/breaks: annual leave, maternity and parental leave, career breaks Part-timers, like their full-time colleagues, are entitled to a minimum of statutory annual leave, maternity leave, parental leave, and time-off for dependants. In some cases, companies extend these statutory entitlements with enhanced contractual conditions. When this occurs, part-timers should have the same entitlements as their full-time colleagues, on a pro rata basis where appropriate. In the case of career breaks, part-time staff should be treated no less favourably than comparable full-time staff. To comply with the law: The contractual holiday entitlement of part-time staff should be pro rata to that of comparable full-timers.
Contractual maternity leave and parental leave should be available to part-timers in the same way as for comparable full-timers.
Career-break schemes should be available to part-timers in the same way as for comparable full-time unless their exclusion is objectively justified on grounds other than their part-time status.
Redundancy In a redundancy situation, part-timers should be treated no less favourably than their full-time equivalents. Different treatment of full-timers and part-timers will only be lawful if it can be justified on objective grounds. To comply with the law: The criteria used to select jobs for redundancy should be objectively justified, and part-timers must not be treated less favourably than comparable full-timers.
Objective justification The right of part-timers not to be treated less favourably than a comparable full-timer applies only if the treatment is not justified on objective grounds. Less favourable treatment will only be justified on objective grounds if it can be shown that the less favourable treatment: (1) is to achieve a legitimate objective, for example a genuine business objective; (2) is necessary
to achieve that objective; and |
