3 Oct 2016

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “PTW Regulations”) were introduced to help protect part-time workers who are considered to be more likely to be the subject of detrimental action and inaction than their full-time counterparts. Detriment can be anything from less favourable terms of employment (on a pro-rata basis), less favourable treatment in the workplace and reduced promotion prospects.

All “workers” are, broadly speaking, covered by the PTW Regulations. The term “workers” has a broad definition within the legislation and covers contracts which require personal work in addition to all employees engaged through a contract of employment. There is no qualifying minimum working period for a part-timer to be protected by the legislation as is the case with some other protective employment legislation.

The legislation applies to part-time workers, something that in most cases will not be in dispute. Where the status of a worker is disputed, the employment tribunal will look to the facts of the case and draw a comparison with other workers who are considered full-time employees.

The level of protection

Unfavourable treatment includes both the terms of his/her contract and/or being subjected to any other detriment by any act, or deliberate failure to act, by his/her employer. The second limb of the test is for the complainant to show that such less favourable treatment is on the grounds of his/her part-time worker status.

The part-time worker complaining of less favourable treatment would be required to compare himself with a comparable full-time worker. This would be someone who fulfils a similar position or has (or previously had) a broadly similar role. Account must be taken of the comparators level of qualification, experience and skills where appropriate. The comparator must also be employed by the same employer and employed under the same type of contract i.e. either both the complainant and the comparator must be either employed under a contract of employment or both must be contractors under a contract for services. The comparator must be based at the same site as the part-time worker unless there are no comparator workers in the complainant’s role at that site, in which case the complainant may make a comparison with someone from a separate site within the same organisation.  However, in such circumstances, an employment tribunal may have consideration for reasonable differences between the complainant and the comparator based at another site, for example a London weighting on a salary when the other office is regionally based.  Unlike other forms of discrimination, a complainant is not permitted to use a hypothetical comparator.

Once a suitable comparator has been found, comparison will occur on the “pro-rata principle”, i.e. the part-time worker’s entitlements should be pro-rated equivalently with the full-time worker.

Employer defences

The employer is allowed to treat part-time workers less favourably provided that they can provide objective justification for the less favourable treatment. This effectively means that employers cannot treat part-time work less favourable solely on the grounds of being part-time. This must be where the business is trying to achieve an objective aim, the less favourable treatment is necessary to achieve that aim and the treatment is an appropriate way to achieve the aim.

Remedies in favour of the employee

Once a successful claim has been proven, the employment tribunal has the power to offer wide remedies in favour of the complainant.

Firstly the employment tribunal can make a simple declaration of the worker’s rights. Secondly it can make an order for compensation to the worker that it considers just and equitable, although there will be no power to offer compensation for injury to feelings. Lastly, the employment tribunal can force the employer to reverse the effect of the complaint. Where such directions are not followed, the employment tribunal could increase the amount of compensation to be paid to the worker.

The power of the employment tribunal to award compensation is of great worry to employers. The risk is that a single claim may have a dramatic effect across the workforce. If, for example, the employment tribunal were to find that a worker had been underpaid over the course of his/her entire employment with the employer, then the amounts of compensation could be very large. More worrying, however, would be a situation where there are a large number of  part-time workers working under similar contracts as the successful complainant. In this instance, large numbers of workers could be owed back payments for several years.  This was precisely what happened in recent years when over 40,000 part-time teachers, fire-fighters and nurses brought related claims against their respective local authority employers for lost entitlements under their final salary pension schemes.

Planning ahead

It is therefore essential to take proper advice when drawing up the contracts of employment of part-time workers. Thought should be given to whether part-time workers are being treated less favourably – both in terms of pay and in the way that the business is run. If there are measures or inactions on the part of the employer that could be regarded as unequal, it should be considered whether these can be justified and advice should be sought sooner rather than later.

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