The law says that part-time workers cannot be treated less favourably than comparable full-timers. In Forth Valley Health Board v Campbell, the Employment Appeal Tribunal (EAT) held that the board was not treating its part-time workers less favourably when it denied them a paid break as the reason was the length of the shift, not their status as part-timers.
Mr Campbell worked for the health board as a part-time phlebotomist for an average of 16 hours per week on a six-week rota. If the shift lasted for at least six hours he was entitled to a “complimentary” paid break of 15 minutes. However, as he only worked a six-hour shift at the weekend, he was unable to benefit from the break during the week when he worked four-hour shifts. Two other part-time employees (MR and CG) were also unable to take the 15-minute break when their shift was less than six hours, although GC was given the break when she worked a four-hour shift on a Friday.
Mr Campbell claimed he was being treated less favourably under regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The board defended the claim, arguing that the reason that Mr Campbell could not benefit from the paid break was not because he was a part-time worker, but because he worked a four-hour, as opposed to a six-hour, shift.
Regulation 5 states that part-time workers have the right not to be treated less favourably than comparable full-time workers if the treatment is because the worker is part-time and the employer cannot justify the treatment on objective grounds.
The tribunal dismissed the board’s argument holding that it was completely circular given that part-time workers, by definition, worked fewer hours than full-timers. It, therefore, undermined the purpose of the regulations which was to protect part-time workers from less favourable treatment.
Nor could the difference in treatment be objectively justified because even if the length of the shift was the reason for denying a complimentary break to workers undertaking four-hour shifts, the board was aware that GC was allowed a complimentary break on a Friday when she worked a four-hour shift.
It concluded that “it could not be said that the defining characteristic was because a worker was on a four-hour shift. That reason having disappeared the only other reason for the less favourable treatment could be that the claimant was a part-time worker. That was the sole reason.”
The EAT, however, disagreed, holding that it was quite clear that if a worker worked four shifts of six hours, they would benefit from the break in each shift. However, if they worked six shifts of four hours, they would not. This rule applied irrespective of whether the individual was a full-time or part-time worker.
The reason, therefore, that Mr Campbell received less favourable treatment on some shifts compared to his full-time comparator was the length of the shift in question rather than the total hours he worked.
The tribunal, on the other hand, had conflated the two issues. Although it was right to observe that a part-time worker would inevitably work fewer hours than a full-time comparator, it was hard to see how it reached the conclusion that the week-day shift pattern that Mr Campbell worked was in any way related to his part-time status. On the contrary, the evidence showed that when he and other part-time workers worked a shift longer than six hours, they became entitled to the break.
Sometimes in employment law the harder you look at something the harder it is to see. This is one of those occasions. It was wrong to say: “he did four-hour shifts because he was part-time, therefore he lost out when four-hour shifts did not attract the paid break”. If that was the right analysis you would always find an unlawful difference because part-timers always work fewer hours than full-timers. The proper approach is to ask whether a full-time colleague doing a four-hour shift would also have lost out. Since they did, getting the paid break was connected to the length of the shift, and not whether you worked full or part-time.