Flexible working
The Court of Appeal has held that there could be no remedy for part-time female workers who were prevented from joining an occupational pension scheme during particular periods because they would not have chosen to join the pension scheme even if they had been eligible to do so.
In a decision that may appear harsh, the employment tribunal penalised the employer almost £3,000 for failing to follow the statutory right to request flexible working procedure to the letter, even though the managing director may have been distracted because he was dealing with possible redundancies at the same time.
A manager's disastrous mishandling of an application for flexible working, from an employee who had returned from maternity leave, meant that she resigned and successfully claimed constructive dismissal.
In Carl v University of Sheffield [2009] IRLR 616 EAT, the EAT held that a part-time worker complaining of less favourable treatment does not have to show that the treatment was solely on the ground of his or her part-time status. The EAT also held that the comparison must be with an actual, not a hypothetical, comparator.
In Sharma and others v Manchester City Council [2008] IRLR 336, the EAT held that part-time status does not need to be the sole reason for less favourable treatment, as compared to that of a full-time worker, for a complaint of unlawful discrimination to succeed.
In Voss v Land Berlin C-300/06, the ECJ ruled that legislation under which overtime pay arrangements result in a part-timer being paid less overall than a comparable full-timer for the same number of hours potentially contravenes the principle of equal pay enshrined in art. 141 of the Treaty establishing the European Community.
In McMenemy v Capita Business Services Ltd [2007] IRLR 400 CS the Court of Session held that an employer that did not award time off in lieu of bank holidays to a part-time employee who did not work on Mondays was not in breach of the part-time worker Regulations.
In Matthews and others v Kent & Medway Towns Fire Authority and others [2006] UKHL 8, the House of Lords held that in the assessment of whether full- and part-time workers are employed on broadly similar work, both the differences and the similarities between the two groups should be considered and an overall assessment made.
In Commotion Ltd v Rutty, the EAT holds that it was open to the employment tribunal to find that an employee's formal application under the right to request flexible working satisfied step one of the statutory grievance procedure where it was presented after the refusal of an informal flexible working request.
This week's case round-up from Eversheds, covering less favourable treatment of part-time employees.
Employment law cases: HR and legal information and guidance relating to flexible working.