With regards to the terms and conditions of an Employment Contract, part-time workers have the right to be treated the same as full-time workers. If an employer in England or Wales treats you less favourably than a comparable full-time worker, you may be able to bring a claim in the Employment Tribunal.
The regulations relating to part-time workers are the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI 2000/1551 (the Regulations). They came into force in July 2000 and implement the EU Part-time Work Directive No. 97/81.
The key right protected in the Regulations is the right for a part-time worker not to be treated less favourably than a comparable full-time worker in respect of contractual terms and conditions. You also have the right to request from your employer a written statement giving reasons for any less favourable treatment to which you have been subjected.
You are also protected against victimisation by your employer for exercising your rights under the Regulations. If you are subject to a detriment or you are dismissed in these circumstances, no qualifying period of continuous employment is required to bring a claim for automatic Unfair Dismissal.
What is a Part-time Worker?
A 'worker' under the Regulations is the same as in the Working Time Regulations 1998. It includes people employed under a Contract of Employment, as well as people who work for others but do not do so in business on their own account.
A worker is part-time if he or she is paid wholly or in part by reference for the time he works, but compared to the other workers employed under the same type of contract by the same employer, is not identifiable as a full-time worker.
Comparable Full-time Worker
If feel that you have been treated less favourably than a full-time worker, you will need to prove your case by comparing your treatment to that of a 'comparable full-time worker'. A comparable full-time worker is someone who is:
- Paid, like a part-time worker, wholly or in part by reference for the time he works, and
- Employed by the same employer under the same type of contract, and
- Engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience, and
- Works or is based at the same establishment as the part-time worker or, where there is no comparable full-time worker at that establishment, works or is based at a different establishment.
Full-time and retained (part-time) firefighters have been held to be employed under the same type of contract.
A full-time worker who becomes part-time may consider themselves as a comparable full-time worker for the purpose of any claim, even if his part-time contract and previous full-time contract are not of the same type.
Remember that you must rely on an actual comparator, you are not permitted to rely on a hypothetical comparator.
It's important to choose the most appropriate full-time comparator. It's also vital to obtain the best possible evidence as to the extent of the overlap between the full-time and part-time roles, both in terms of time spent on particular tasks and the importance of those tasks to the employer in question.
What is Less Favourable Treatment?
Less favourable treatment is wide-ranging and can cover matters such as:
- Basic rates of pay, bonuses and shift allowances
- Contractual sick pay
- Career breaks
- Parental leave
- Maternity pay and maternity leave
- Other family leave
- Fringe benefits e.g. staff discounts, subsidised mortgages
- Access to pension schemes
- Redundancy selection
Part-time workers should also not be treated less favourably in connection with the service required to qualify for any benefits or the extent of any entitlement, and should not excluded from training simply because they work part-time.
The pro rata principle must be applied (unless inappropriate) when considering whether a part-time worker has been treated less favourably.
Where part-time workers only receive overtime rates once they have worked the equivalent of a full-time worker's weekly hours, not once they have completed the hours they themselves work each week, there is no less favourable treatment.
Your employer may be able to defend a part-time discrimination claim on the basis of objective justification. For an employer to use this defence, the difference in treatment must be shown to:
- pursue a legitimate aim
- be suitable for achieving that objective, and
- be reasonably necessary to do so
In the case of O'Brien v Ministry of Justice in 2013, the Supreme Court held that the cost an employer would incur by treating a part-time worker the same as a full-time worker is not a justification.
Employment Tribunal Time Limits
As a general rule a claim must be presented to the Employment Tribunal within 3 months, starting from:
- The date of the act or omission amounting to a detriment, or
- The date of the last of a series of such acts or omissions
Note that you will need to start the ACAS Early Conciliation process before the Employment Tribunal limitation period expires.
If you believe you have been treated less favourably by your employer because you are a part-time worker, our Employment Solicitors offer a 30 minute telephone consultation for Fixed Fee of £60 including VAT.
Call our Employment Law Solicitors on 03306069589 or contact us online and we will call you.