Avoiding part-time pitfalls

Since the Part Time (Prevention of Less Favourable Treatment) Regulations 2000 came into effect, part-time workers are entitled to receive equality in the workplace. But even now we sometimes see challenges, often when working practices are not immediately recognised as being part-time.

When offering bespoke legal advice, we still occasionally hear surprise in the recipient’s voice when they learn that all employees working term-time only are actually classed as ‘part-time’ for the purposes of employment law, as they work less than 52 weeks a year, irrespective of their ‘full-time’ hours during terms.

The Part Time (Prevention of Less Favourable Treatment) Regulations means that part-time workers should be treated the same as full-time employees in regard to the terms and conditions of their employment.

What this means has been left open to a case-by-case determination – there are no lists within the regulations themselves – however, over the years this has been concluded to mean, although it is not limited to, equality in:

rates of pay
training
annual leave
rest breaks
contractual benefits
pensions
selection for career advancement or promotion

Here are some of the recent developments to consider….

Holiday pay
Since the case of Brazel vs Harpur Trust in 2019, annual leave for any employee or worker, irrespective of the number of weeks they work in a year, is 5.6 weeks. This statutory minimum cannot be pro-rated down based on the assumption that the 5.6 weeks only applies to those who work 52 weeks a year.

The case is currently working its way through a number of appeals and we are currently awaiting the decision of the Supreme Court – please watch this space for an update.

Providers who were historically advised to apply a pro rate of the 5.6 week annual leave entitlement because they operate on a term-time only basis, and continue to do so, should contact Law-Call for advice on this at their earliest convenience.

Public holidays
The flexibility of the language used in the regulations means that an employee or worker is not entitled to receive holiday pay in lieu when a setting is closed on a public holiday, where closures do not correspond with their usual working days.

For example, if an employee or worker does not work on a Monday and the setting is closed on that day for a public holiday, then no pay or time off in lieu is due.

Some care must be taken here – they must still be given their 5.6 weeks annual leave, so it is recommended that settings contact Law-Call for clarity.

Overtime
When it comes to overtime, there is a case that part-time workers are not eligible to receive overtime rates of pay, often paid at an enhanced rate, until they have worked sufficient hours that meet and are over that of a full-time employee.

For example, if a full-time employee works 30 hours a week, an employee working 15 hours a week will only be eligible to receive the overtime pay once they have worked more than 30 hours. Hours worked before this are paid at the normal rate.

Equality considerations
Statistics still indicate that although there is a positive movement towards equality in caring responsibilities, women are still more likely than men to alter their working pattern for childcare reasons and are therefore more likely to work part-time or flexible hours.

Employers need to be mindful of queries that may be linked to less favourable treatment that could be argued under not just the regulations discussed above but also under the Equality Act 2010.

Flexible working
The introduction of the Work and Families Act 2010 permits men as well as women to apply to work flexibly if they have more than 26 weeks service with their employer. This affords the right to make a request – although it is not a demand.

There are certain protocols that must be applied by the employer after a request has been received, however the employer has statutory defences that can be considered to decline the employees request or make a counter proposal if there are difficulties behind such requests.