The law protects part time workers. Under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time workers have the right not to be treated less favourably than comparable full-time workers as regard the terms of their contract of employment or by being subjected to any other detriment. This protection covers any less favourable treatment of a part time worker solely because they are part-time, unless such treatment is justified on objective grounds.
Employers are often confused about whether the above regulations mean that their part-time workers, who do not usually work on a Monday, are entitled to pro-rata extra time off in respect of those bank holidays which fall on a Monday. A recent case in the Employment Appeal Tribunal has given a view on this.
The employer, Capita Business Services, operated 7 days a week. Mr McMenemy (“Mr M”) worked 3 days - Wednesdays, Thursdays and Fridays. Mr M complained that he was being treated less favorably than comparable full-time workers were as he did not get the benefit of public holidays, which fell on Mondays – at least 4 a year. Mr M’s contract of employment and that of his full-time colleagues, provided that he was entitled to take public holidays only when they fell “on a normal working day”.
The Employment Tribunal found that Mr M was suffering a detriment because he did not receive the benefit of Monday bank holidays. However, the reason was not his status as a part-time worker but simply because he did not work Mondays. Hence his claim was dismissed.
Mr M appealed to the Employment Appeal Tribunal, which upheld the Tribunal’s decision. However, key to the Employment Appeal Tribunal’s decision appear to be the specific facts that:
the business operated 7 days a week;
some full-time workers also did not get the benefit of Monday bank holidays because they too did not normally work on that day;
some part-time workers did get the benefit of bank holidays falling on a Monday if they normally worked on that day.
Whilst the decision is of some comfort to employers who do not give part-time workers additional pro-rata time off in respect of Monday bank holidays, the Employment Appeal Tribunal placed a lot of emphasis on the fact that Capita Business Services operated a 7 day week and that full-time workers who worked 5 days a week excluding Mondays were treated the same as part time staff. The same approach may not be taken where a business operates a traditional 5 day week and where all full-timers receive the benefit of all Bank Holidays.
Arguably employers that work a standard 5 day week could justify restricting the benefit of time off to people who actually work on the days when bank holidays fall, even if doing so has a detrimental impact on part-time workers. Unfortunately, that point was not tested in this case.
The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 set out various protections for part-time workers and it is important that employers are aware of these. To assess compliance with the regulations employers should consider:
Do they treat part-time workers differently?
Is that different treatment less favourable to the part-time workers?
Is the different treatment solely because the workers are part-time?
If so, can that different treatment be objectively justified?
If you would like more information on this topic then please contact Suzanne Brookes at 109 Boutport Street, Barnstaple, Devon, EX31 1TA on 01271 324 273 or by email firstname.lastname@example.org.
Head of Employment Services
Peter Peter and Wright Solicitors
Barnstaple, Bideford, Bude, Holsworthy, Okehampton,
Tel: 01271 324 273