A new European directive on part-time working has been approved by the European Social Partners (the European TUC and the European equivalent of the CBI) under the procedure allowed for by the Social chapter. Our own TUC and CBI participated in the negotiations. It now needs only to be accepted by the Social Affairs Council of Ministers to become law within two years.

If passed, it would for the first time establish a legal right to equal treatment for part-time workers. At present, part time workers rights have been achieved through using sex discrimination law and rights are often won on a piecemeal and case by case basis.

The 'Agreement on Part Time Working' establishes the principle that part-time workers should not face discrimination solely because they work part-time, unless different treatment is justified on objective grounds. It is a significant breakthrough in Europe's attempts to protect atypical workers.

It will have the effect of shifting the burden of proof in part-time workers' cases away from the employee to the employer.

All the national statistics show that the vast majority of part-time workers are women and the research, including the TUC research shows that six out of ten part time workers do not get the same contractual rights as their full time counter parts.

But, the burden of proof is currently on the employee to prove discrimination in each case in order to achieve parity with full time workers. Although discrimination against part time workers can rarely be objectively justified by an employer, it is not always easy to prove the discrimination.

In predominantly female work places it can be difficult to obtain the statistical evidence required to show disparate impact against women. In equal pay cases it may be difficult to find actual comparators where all the so called 'women's work' is done exclusively by part timers. Male part-timers will rarely be able to prove indirect discrimination.

The agreement also heralds a breakthrough in seeking to establish protection from discrimination by reference to the pattern of work rather than a characteristic of the worker.

The agreement arose from the ashes of the Atypical Workers Directive. After years of negotiation between the member states the Atypical Workers Directive was vetoed by the UK Government in November 1994. It required unanimous approval in order to be passed.

The Atypical Workers Directive would have covered part time, fixed term and temporary workers. The Part Time Workers Agreement could therefore pave the way for protection for other categories of workers in due course.

The predictable objections to the Agreement have been raised by, in particular, the small business lobby. They argue that the extension of rights will cost part-timers jobs and that the Directive would hurt most those it is seeking to protect. These are old arguments which are swiftly dealt with. They were identical to the objections raised by the business lobby and the then UK Government in the Equal Opportunities Commission judicial review proceedings.

The House of Lords were not convinced that the discriminatory threshold for acquiring protection from unfair dismissal and the right to a redundancy payment could be justified and so the two tier system was removed. Since part-timers gained the same statutory rights in employment as full-timers, the statistics show that it has not affected the overall number of part-time jobs available.

For example, in small companies employing 50 or less employees, since part-time workers acquired the same statutory rights as full-time workers, not only have the numbers of part-time workers increased, but they have in fact increased at faster rate than the increase in full-time jobs with small employers. The pattern is the same for larger employers.

If passed, the principle of non-discrimination will cover 'employment conditions'. This will include all contractual terms, like paid sick and holiday leave, contractual staff discounts, occupational pensions and contractual pay, bonus and shift allowances. 
It may also include non-contractual provisions such as ex gratia payments, working conditions and issues of equal treatment. The precise meaning of 'employment 
conditions' has yet to become clear.

All part-time workers will be covered by the agreement. A part-time worker is one who has 'an employment contract or employment relationship'. It is therefore wider than the definition of employee for the purposes of the Employment Rights Act 1996 (Section 230) which refers only to an employment contract.

The definition is more akin to that in the Sex Discrimination Act and Race Relations Act which covers employment under a contract of service, apprenticeship, or a contract personally to execute any work or labour.

The pro rata principle will apply to part-time workers employment conditions where appropriate. If an employer can objectively justify different treatment for part-time workers, they may have a defence to a claim. Objective justification is likely to be a heavy burden with the employer needing to show that less favourable treatment of part-timers corresponds to a real need on the employer's part; be appropriate with a view to achieving that objective or reason and, be necessary to that end (the 'Bilka Kaufhaus test').

There is also limited scope for member states - after consultation with the social partners, and where justified by objective reasons and where appropriate - to make access to particular conditions of employment subject to conditions such as a period of service, time worked or earnings qualification (Clause 4.4).

The Agreement places an obligation to identify and review obstacles which might limit opportunities for part-time work and, where appropriate, to eliminate them. Employers and trade unions will need to review collective agreements to identify obstacles which may limit opportunities for part-time work as well.

Under the Agreement employers are required to give consideration to requests by workers to transfer from full-time to part-time work and vice versa. They must also give consideration to providing information on the availability of part-time and full-time work in their establishment to facilitate transfers from part-time to full-time and to facilitate access to part-time workers at all levels of their enterprise.

It will be for Member States to decide how best to implement the Directive and they are at liberty to maintain or introduce more favourable provisions than those set out in the agreement. The agreement cannot be used as an excuse for reducing the general level of protection afforded to part time workers and the agreement will not affect specific community legislation, particularly in relation to equal treatment and opportunities for men and women. It would still be possible to bring both sex discrimination and equal pay cases on behalf of part-time women workers, should any gaps be left by the agreement.

If passed, member states will have 2 years to adopt the agreement, with the right of one additional year to comply if there are particular difficulties of implementation involved.

The agreement is a welcome step forward to provide a comprehensive floor of rights for part-time workers to prevent discrimination and reduce the difficulties in establishing rights for part-time workers through using the sex discrimination legislation. We should know in October whether it has gained approval from the Social Affairs Council of Ministers.