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18:44 on Tuesday
28 October 2003

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Rights of part-time workers


Many employers seem unaware that the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 that came into force on 1 July 2000 give part-time workers the same rights as those working full-time. The only difference is that conditions of employment can be pro-rata to the hours worked as compared to the full-time employee.

Many companies still exclude part-time staff from sick pay, holiday pay and pension entitlement. If challenged, this would almost certainly be found to be discriminatory by an employment tribunal, since in most organisations the majority of part-timers are women. A part-time worker is now defined as someone who is contracted to work fewer hours than the equivalent full-timer. There is now no limit as to the number of hours an employee has to work before getting the protection under the regulations. With conditions of employment such as holidays and sickness benefit it is easy to pro-rata. For example, the employee who works three full days a week should receive three-fifths of the full-time entitlement (assuming the full-timer works a five-day week) in respect of holiday and sickness benefit.

A question that is often asked is what happens about statutory holidays when a part-time employee does not normally work on such days. It is now generally considered that if a full- time worker is paid for statutory holidays then the part-time worker is entitled to be paid for a proportion of those holidays irrespective of whether they normally work on that day or not. Taking the above example of the three day a week worker, the employee would be entitled to three fifths of the eight statutory holidays each year assuming that the full-time equivalent is also paid for those holidays. Where an employee works variable hours each week then the entitlement to paid leave will depend upon the average pay received in the twelve week period leading up to the week in which the leave is to taken. A week’s holiday would therefore be paid in accordance with this average rate of pay.

Another area that often causes difficulty is how do you pro-rata benefits such as company cars and private medical? The regulations provide that the part-time worker has the right not to be treated less favourably than the comparable full-time employee. Where it is not possible to pro-rata the benefit, such as a company car, the employer would have to justify that the cost is disproportionate to the business. The fact that the benefit cannot be pro-rata is not a defence. As a last resort, the benefit could be converted to a cash equivalent on a pro-rata basis but where possible, the benefit should be given under such an arrangement whereby the employee perhaps pays for part of it. For example, private medical could be provided and the employer pays a pro-rata amount based on the hours worked with the employee paying the remainder, subject to the scheme allowing this.

Where a particular category of worker, such as cleaning staff, are all part-time and there is no full-time equivalent, then the conditions of employment can be designed specifically for that group of workers. However, care has to be taken since as mentioned above there is still the possibility of a claim of discrimination and often a full-time equivalent can be identified albeit not exactly the same job. For example, if you have part-time office cleaners and a full-time labourer, it could be argued that the labourer is a full-time equivalent depending on the duties undertaken by that person. 

The AP Partnership will advise on such issues as part of their Employment Law Service to companies.
 

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