We reported on the consultation draft (see Issue 44 of LELR), and now we have the finished final product: The Part-time Worker (Prevention of less favourable treatment) Regulations 2000 which came into force on 1 July.

As well as being able to rely on indirect sex discrimination and equal pay law to gain parity with full time colleagues, the Part Time Workers' Regulations can also be used.

For the first time in UK law the concept of non-discrimination is introduced by reference to the characteristics of the work relationship, and not characteristics to do with the worker. Free standing rights for part time workers without the need to prove sex discrimination.

That is not to say that the new laws will solve all the problems faced by part-timers. As always the devil is in the detail. Sadly only limited numbers of part time workers will benefit because the rights are hedged with restrictions and limitations which will make the rights difficult to achieve in practice.

Sources

The Regulations implement the EU Framework Agreement on Part-Time Working which is contained in the EU Directive of 1997 on Part-Time Working. The Framework Agreement was originally made under the EU Social Chapter which the UK signed up to after the last election.

Coverage

Consistent with other recent employment legislation and after a battle with the CBI, the Regulations apply to "workers", rather than the more restrictive definition of "employees". The Regulations apply both to pay and contractual inequalities (including access to pension schemes, and treatment under a scheme's rules), as well as inequalities of treatment in the workplace.

Less favourable treatment

A part-time worker has the right not to be treated less favourably as regards the contract of employment or being subjected to any other detriment where:

  • the treatment is on the ground that the worker is a part-time worker; and
  • the treatment is not justified on objective grounds.

 

To decide whether or not there has been less favourable treatment, the pro-rata principle applies "unless it is inappropriate". This means that a part-timer is entitled to receive the same pay and benefits as a full-timer, but reduced by a percentage which reflects the difference in hours worked. For this purpose "weekly hours" will be taken as the usual hours of work in a week where there are no absences, and where hours vary according to cycles, an average of those hours.

One situation is expressly defined as not amounting to less favourable treatment. That is where, over a given period, a part-timer actually works in excess of her basic hours, but does not exceed a full-timer's hours in the same period. The part-timer is not entitled to claim the same rates of overtime for her/his extra hours as the full-timer would be able to claim for exceeding her/his hours.

Remedies and Enforcement

A part-timer who considers that she/he may have been treated less favourably than a "comparable full-time worker" on ground of part-time status may request a written statement of the reasons for less favourable treatment. The part-timer is entitled to a response within 21 days. If the employer fails to respond within that period (without reasonable excuse), or if the reply is evasive or equivocal, an Employment Tribunal may draw an inference of infringement of the Regulations.

The Regulations provide for protection against victimisation on account of having carried out defined protected acts, similar to the provisions contained in Sex Discrimination and Race Relations Acts. Requesting a written statement of the reasons for less favourable treatment is protected. The protection does not apply where the allegations are "false and not made in good faith".

Complaints must be made to Employment Tribunals within three months of the treatment complained of. Terms of a contract are to be treated as less favourable on each day of the period during which the term is actually less favourable. In the case of less favourable treatment by way of an omission to act, the time limit will start to run from the day on which the employer decided not to act. Unless proved to the contrary, this will be when the employer does something inconsistent with the "failed act" or the time expires during which the employer might reasonably have been expected to do the "failed act".

Where a Tribunal upholds a complaint, it can: red bullet indicating list itemmake a declaration;

  • award compensation; and/or
  • recommend that the employer takes specified action within a specified period.

Where a successful complaint relates to access to a membership of a pension scheme or to treatment within that scheme, only the two years preceding the presentation of the claim can be taken into account in any Tribunal award.