Part-timers and bank holidays
Consultant editor Darren Newman argues that the EAT would have reached the same conclusion in McMenemy if the only full-time working pattern had been Monday to Friday.
When training HR professionals on employment law, the one question I always dread is how part-time workers should be treated in relation to bank holidays. It's not so much the legal principles that worry me, but that working out how to give part-timers a pro rata entitlement involves maths - and I was never very good at fractions.
I am, therefore, delighted that in this issue1 we report the case of McMenemy v Capita Business Services Ltd, in which the EAT held that a part-time worker who was employed to work Wednesdays, Thursdays and Fridays was not entitled under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) to be paid for public holidays on a pro rata basis with a full-timer who worked Monday through to Friday.
In reaching its decision, the EAT accepted that Mr McMenemy was treated less favourably than a comparable full-time worker, but held that the treatment was not "on the grounds" that he was part time. The employer had shown that its policy was that all workers, part time or not, were paid in respect of bank holidays that fell on one of their normal working days.
Many commentators have seized on the fact that the employer in this case was operating on a seven-day-week basis, with the result that it was possible for a full-time worker to work Tuesdays to Saturdays. Indeed, there was evidence that this had happened in the past. However, while this evidence certainly helped the EAT in upholding the tribunal's finding on causation, it was merely background evidence. It did not affect the principle that it is not enough to be treated less favourably than a full-timer - the less favourable treatment must also be on the grounds that the claimant works part time.
In showing that treatment was not on those grounds, there is no reason why an employer would need to point to the unusual situation of a full-timer who does not work on Mondays. The point is made sufficiently clearly by pointing to another part-timer who works on Mondays. On a pro rata basis, such a worker is actually treated more favourably than a full-time worker if he or she is paid for bank holidays that fall on a normal working day. Surely, in this situation, the extent to which a worker is paid in respect of bank holidays is dependent not on whether the worker is part time, but on his or her pattern of employment.
Employers should be aware that this case helps only those employers whose standard terms and conditions are drafted on the basis that workers are given only those bank holidays that fall on their normal working days. Where the contract already provides for a pro rata entitlement, the contract will prevail whatever the correct interpretation of the Regulations.
Amendments that are currently being proposed to the Working Time Regulations 1998 will, to some extent, require employers to give workers a bank holiday entitlement. This will improve the situation for those workers, both full time and part time, who currently receive only the minimum holiday entitlement under the Regulations.
The government is proposing to increase the minimum annual holiday entitlement to 5.6 weeks as a way of ensuring that the minimum four weeks' leave currently provided for does not include bank holidays.
Under these proposals an employee who works three days a week (whatever days those are) would see his or her minimum holiday entitlement rise from 12 days to 16.8 days. This change will be phased in over time, beginning in October 2007 when the entitlement will be increased to 4.8 weeks, which for our three-day-a-week part-timer will mean an entitlement of 14.4 days.
I just hope that the amending regulations, when published, provide for holiday entitlement to be rounded up to the nearest half day - otherwise I may have to brush up on my fractions after all.
1See Part-timer not entitled to Monday bank holidays for more.
