Employment Alert No. 75 - Part-Time Workers
September 25, 2003
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What is the issue? |
The Part-Time Workers Regulations 2000 (the "Part-Time Regulations") aim to protect part-time workers from being less favourably treated than full-time workers.
In order to bring a successful claim, a part-time worker must compare him or herself to a full-time worker who is employed by the same employer under the "same type of contract" and engaged in the same or broadly similar work (which can include considering whether the two workers have a similar level of qualification, skills and experience). Further, the part-time worker must point to the less favourable treatment or detriment that he has allegedly suffered.
Regulation 2(2)(d) allows the employers to argue that the part-time complainants fall within a category of worker whom it is reasonable for the employer to treat differently than other workers on the ground that workers have a different type of contract.
In the recent Employment Appeal Tribunal ("EAT") case of B R Matthews & others v Kent & Medway Towns Fire Authority & others, 12,000 retained (i.e. part-time) fire-fighters brought a claim for parity of treatment in respect of access to the firemen's final pension scheme and other pay benefits afforded to full-time regular fire-fighters. They argued that by not being given access to the pension scheme, they were being treated less favourably because they were part-time workers.
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What did the Employment Appeal decide? |
The EAT rejected the part-time fire-fighters' claims on the basis that they were not employed on the "same type of contract" as their full-time comparators. The EAT conducted that the differences between the part-time and full-time roles were so marked that the part-time fire fighters could not compare themselves to full-time ones.
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What does this mean for employers? |
This is the first major appellate judgement on the Part-Time Regulations since they came into force on 1 July 2000.
However, it is likely that the EAT was persuaded in this Decision by the lengthy and careful analysis conducted by the Tribunal in analysing both the actual work activities of the two differing groups as well as the differences in their contractual terms. The EAT were careful to note that the Tribunal must assess whether any differences in contractual terms are bona fide or whether they arise from a sham or other device by the employer artificially to create a differential. Such a practice of course would not be sufficient to avoid employers facing claims.
Employers should:
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consider carefully whether their part-time workers carry out the same work activities as some of their full-time workers;
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if so, conduct an audit to ensure that their part-time workers are receiving the same salary and benefits as their full-time comparators unless the differential can be objectively justified;
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to objectively justify less favourable treatment, demonstrate (a) such treatment is to achieve a legitimate objective (i.e. a genuine business objective), (b) the difference in treatment must be necessary to achieve that objective; and (c) the less favourable treatment is an appropriate way to achieve that objective.
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be aware that they cannot adopt a "broad-brush approach" to the terms and conditions of their part-time work-force. This is in contrast to the Fixed-Term Regulations where less favourable treatment in relation to particular contractual terms may be justified if a fixed-term employee's overall package of terms and conditions is no less favourable that the comparable permanent employee's overall package. This is not permissible under the Part-Time Regulations: a part-time worker is entitled to bring a complaint about a specific contractual term and does not have to take into account his whole package of terms and conditions.
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be aware that they cannot create an artificial differential and hope to rely on the different type of contract defence to any claim of unequal treatment.
