The Part-Time Employees (Prevention of Less Favourable Treatment) Regulations
Draft regulations have been published, which will give part-timers some new rights, and will come into effect on 7 April 2000. The Part-Time Employees (Prevention of Less Favourable Treatment) Regulations 2000 implement the Part-Time Work Directive (97/81EC), which was extended to the UK after the Government signed up to the EU Social Chapter. The Directive itself is founded upon a framework agreement negotiated at European level between the social partners.
The Regulations will make it unlawful to discriminate against employees on the ground of their part-time status. At present, part-timers have to rely upon indirect discrimination claims under both sex discrimination and equal pay legislation in order to combat the discrimination which they suffer. Although gender equality legislation will still be available as a means of protection for part-timers, they will now no longer have to rely upon gender discrimination in order to bring a claim. Instead, the Regulations will outlaw discrimination suffered by a part-timer when compared to a comparable full-timer, regardless of their sex.
The Regulations will apply to less favourable treatment, such as harassment, denial of access to training or promotion and other forms of treatment. The Regulations will also cover pay, contractual issues and pensions.
Controversially, the draft Regulations only apply to 'employees' and not to 'workers'. 'Employees' are defined as individuals who have entered into or work under a contract of employment. The Government's stated commitment is to extend the ambit of employment protection legislation to cover 'workers'. 'Workers', as defined in section 230(3) of the Employment Rights Act include not only those working under a contract of employment but also those who undertake to do work personally. There is a strong argument that the Directive requires the coverage of the Regulations to be extended to 'workers', as in the National Minimum Wage Regulations and the Working Time Regulations. As they stand, the draft regulations will not cover freelance, agency or casual workers. The TUC and several unions are already considering a legal challenge.
The mechanism contained in the Regulations involves a comparison between the treatment of a 'part-time employee' with a 'comparable full-time employee'. A full-time employee is someone who is paid wholly or in part by reference to the time she works and, having regard to 'the custom and practice of the employer and, where relevant, her contract of employment, and is 'identifiable' as a full-time employee'. A part-time employee is someone who is paid wholly or in part by reference to the time she works and is not 'identifiable' as a full-time employee.
A comparable full-time employee is a full-time employee who:
- does the same or broadly similar work to the part-timer;
- has a broadly similar level of qualifications, skills and experience; and
- works at the same establishment, or where there is no comparable full-time employee at that establishment, works at a different establishment.
The provisions relating to comparison between part-timers and full-timers are problematic. In particular, the draft Regulations contain no 'equal value' provisions similar to the Equal Pay Act which would enable a part-timer to compare her or his job with a full-timer doing a completely different job, but the demands of which were the same as the part-timer's job. Similarly, there is no apparent scope for the type of "cross-employer" comparisons now made in equal pay cases.
However, the important point is that no difference in gender is required. A part-time female employee may compare her treatment with that of a full-time female employee. The same applies to part and full-time male employees. This will make a difference in predominantly female workplaces, such as the NHS and cleaning and catering industries.
The draft Regulations provide that less favourable treatment of part-time employees will be unlawful unless the treatment is 'justified on objective grounds'.
In establishing whether a part-timer has suffered less favourable treatment, the principle of pro rata will apply unless it would be inappropriate. However, the draft Regulations do not give any guidance on how tribunals are to assess when the application of the pro rata principle will be inappropriate.
What is required by way of justification is not spelt out in the draft Regulations either, but we anticipate that experience can be drawn from equal pay and indirect discrimination law. Following the Bilka-Kaufhaus case, employers are likely to have to show that any discriminatory treatment corresponds to a real need on the part of the employer, is appropriate to achieving that objective and is necessary to that end.
Disappointingly, but consistent with the European Court of Justice decision in the Helmig case, a part-timer will not be discriminated against where she works overtime, without receiving overtime rates, where her total hours are still less than those of a full-timer, even though the full-timer becomes entitled to overtime rates when working in excess of her or his contracted hours.
Complaints under the Regulations may be made to Employment Tribunals. The time limit for presentation of a claim relating to less favourable treatment is three months from the date of the treatment or detriment. Where the less favourable treatment or detriment consists of pay or a term in a contract of employment which is less favourable, the three month time limit will run from the last day on which that particular term is less favourable.
The Regulations will also contain anti-victimisation provisions and a right to receive a written statement of reasons for less favourable treatment, but unfortunately there is no questionnaire procedure such as is used in race, sex and disability discrimination cases.
In overall terms, the draft Regulations are welcome but do not do enough to protect part-timers from discrimination. On the Government's own estimates, only 45,000 of the UK's six million part-time employees are likely to benefit directly from the regulations with increases in pay and non-wage benefits. Protection of all part-time work forces is likely to be problematic and, as with existing equal pay claims, identification of comparable full-time employees may well be difficult.
Thompsons have prepared a full response to the draft regulations submitted to the DTI as part of their consultation exercise on the draft Regulations. Contact the Employment Rights Unit at Congress House for a copy.