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?