In the UK, before June 2000 there was no express protection for part-time workers against less favourable treatment when compared with those who work full time. Their only options for legal redress were by way of an equal pay or sex discrimination claim. In 2000 the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (the Regulations) came into force providing specific protection for part-time employees and workers.
What is a part-time worker?
In the Regulations, a part-time worker is defined as a person who is paid wholly or in part by reference to the time they work, and who is not a full-time worker having regard to the employer’s custom and practice in relation to workers employed under the same type of contract. A “worker” includes a person who works under a contract of employment or under any other contract for the personal performance of work or services with the exception of services which are provided for a client or customer on a professional basis or by a business undertaking carried on by the individual.
Identifying a comparator
In order to bring a claim under the Regulations, a part-time worker must identify a suitable full-time worker as a comparator.
The comparator must be:
- Employed by the same employer.
- Employed under the same type of contract.
- Engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience.
- Working or based at the same establishment as the part-time worker or, where there is no such worker who satisfies the three requirements listed above, working or based at a different establishment and satisfying those requirements.
Protection against less favourable treatment
Under the Regulations, a part-time worker has the right not to be treated less favourably than the employer treats a comparable full-time worker with regard to the terms of their contract; or by being subjected to any other detriment by their employer.
This means, for example, that a part-timer worker is entitled to the same hourly rate of a pay as comparable full-time workers.
This applies only where the less favourable treatment is on the ground of the worker’s part-time status and the treatment is not justified on objective grounds. For example, if the part-time worker brought a claim because of not being promoted, the employer may have a valid defence if it can show that the reason for the lack of promotion was not the worker’s part-time status but performance issues.
In deciding whether a worker has been treated less favourably under the Regulations, the pro rata principle must apply unless it is inappropriate. This means, for example, if a full-time comparator working 5 days per week is entitled to 25 days’ paid holiday each year, a part-time worker who works 3 days per week should be entitled to 15 days’ paid holiday each year.
There is no minimum qualifying period of employment or upper age limit for bringing a claim under the Regulations but a claim must be brought within three months of the act or omission complained of.
If the claim is successful, the tribunal can:
- make a declaration as the rights of the parties; and/or
- order the employer to pay compensation; and/or
- recommend that the employer take action to address the matter complained of.