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URN No: 02/1710
This document provides guidance on complying with the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). The Regulations implement the EC directive on part-time work. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002 (SI 2002/2035) made two amendments to the Regulations, dealing with comparators and with access to pension schemes. This guide explains how the Regulations work for employers and part-timers, what questions they need to consider and what action they should take. In addition to setting out the legal requirements, this detailed guide also offers suggestions for best practice in this area.
This document gives only general guidance and should not be regarded as a complete or authoritative statement of the law; determining the law is a matter for the tribunals and the courts. For more specific advice on how the rules will apply in particular cases, it is recommended that employers and part-timers seek legal advice.
This guide on part-time work has been produced by the DTI in discussion with a working group including a wide range of bodies representing employers and employees.
Less-favourable treatment of part-time workers is not widespread in the UK. However, where it does occur, it can affect a variety of terms and conditions, including pay, pensions, holidays and training.
It was partly in order to combat these residual cases of less-favourable treatment across the EU that the Part-time Work Directive was drawn up. The Directive aims to end less favourable treatment of part-timers in order to support the development of a flexible labour market, by encouraging the greater availability of part-time employment, and increasing the quality and range of jobs which are considered suitable for part-time work or job-sharing.
The Directive was negotiated at the European level by representatives of public and private-sector employers' associations and the European TUC (the 'social partners'). The UK was represented by the CBI and TUC, both of whom approved the agreement. The Government also supported the proposals. The Government has implemented the Directive in the UK by way of regulations and guidance in order to take account of the specific nature of the British labour market. This will ensure that it is effective whilst not imposing unnecessary burdens on business.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 came into force on 1st July 2000. The regulations ensure that part-timers are not treated less favourably in their contractual terms and conditions than comparable full-timers, unless different treatment is justified on objective grounds. Less favourable treatment of a part-timer will be justified on objective grounds if it can be shown that it is necessary and appropriate to achieve a legitimate business objective.
Reorganising the hours of work is a contractual matter between employer and worker. However, in reorganising workloads, employers will need to avoid treating part-time workers less favourably than full-time staff. They should also be aware that in certain situations they may be vulnerable to claims for indirect sex discrimination.
To comply with the law:
If individual companies and the economy as a whole are to reap the full benefit of the flexibility part-time work can offer, then more types of job and levels of management must be opened to part-time workers. The process outlined in the Best Practice section for considering requests by workers to move to part-time hours will help in this, but part-time workers should also be given equal opportunity to seek promotion. Not only is this an area where an employer could be open to a claim of less favourable treatment, but applying opportunity fairly will bring benefits to the employer.
It should also be borne in mind that part-time staff may be willing to work full-time on promotion, because the extra pay available would allow them to afford childcare or buy in the necessary help.
To comply with the law:
As a result of the regulations, part-time workers must receive the same basic rate of pay as comparable full-time workers. They must not be given a lower hourly rate, unless justified by objective grounds.
One example where a different hourly rate might be objectively justified would be a performance related pay scheme. If workers are shown to have a different level of performance measured by a fair and consistent appraisal system this could justifiably result in different rates of pay.
In general, the same principle applies to enhanced rates of pay. In special circumstances, special rates of pay apply. These may include bonus pay, shift allowances, unsocial hours payments or weekend payments. In these cases, part-time workers are entitled to the same hourly rate as a comparable full-time worker.
To comply with the law:
Part-time workers do not have an automatic right to overtime payments once they work beyond their normal hours. Only when part-time workers have worked up to the normal hours of comparable full-time workers do they have a legal right to overtime payments.
This does not affect the right of part-time workers, where they are entitled, to receive unsocial hours payments, weekend payments or other forms of enhanced pay (see previous section).
To comply with the law:
Participation in profit sharing and share option schemes has sometimes been limited, and those who work part-time excluded. This can undermine one of the key aims of these benefits - to motivate staff, and make sure they have a stake in their company's future success.
The Regulations will make most exclusions of part-time staff from profit sharing or share option schemes unlawful. Part-time workers should receive a pro rata level of benefits in line with the number of hours they work, unless their exclusion can be objectively justified.
In the case of share option schemes, there may be cases where exclusions can be objectively justified. In particular, where the value of the share options was so small that the potential benefit to the part-timer of the options was less than the likely cost of realising them.
To comply with the law:
The Regulations apply directly to contractual sick and maternity pay. This means that there is an obligation on employers not to treat a part-time worker less favourably than a comparable full-time worker. The benefits that a full-time worker receives must also apply to part-time workers pro rata. The only exception will be if the different treatment is justified on objective grounds.
To comply with the law, part-time workers should not be treated less favourably than full-time workers in terms of:
Most part-time workers have had access to their employer's occupational pension scheme since 1995 as a result of the principle of 'equal pay for equal work'. Under this principle, employers must provide equality of access, contributions and benefits to men and women, unless the differences are attributable to a material difference other than sex. As most part-time workers are women, the majority of part-time staff already had access to pension schemes because excluding part-time workers might have represented unlawful sex discrimination against women. However, coverage was not universal. Employers could deny access to part-time workers if the exclusion could be objectively justified on ground unrelated to sex and there was no disparate impact on women.
Under the new Regulations, employers cannot deny access to both male and female part-time workers, unless different treatment is justified on objective grounds. Scheme rules may need to be revised, to ensure that they comply with the new legislation.
To comply with the law:
Access to training is essential if part-time workers are to work effectively, and employers are to make the most of their staff. There is a strong business case for making sure that staff are equipped to do their job well, and their skills are up-to-date. Investing in training, when well-targeted, is investing in the future of the enterprise. It also shows a commitment to workers which will pay dividends in increasing the level of staff morale and commitment to the organisation.
Part-time workers often encounter difficulty in obtaining access to training - especially career-orientated development or vocational training. Either they are excluded entirely, or, though they are in theory entitled to attend, their other responsibilities prevent them from participating because of the inconvenient hours. Denying part-time workers access to training will obviously be less favourable treatment.
To comply with the law:
In a redundancy situation, it used to be common practice to make part-time workers redundant before full-time workers. However, the automatic redundancy of part-time staff is likely to be unlawful on two counts: it could well infringe these Regulations to treat part-time workers less favourably than their full-time equivalents, and, since many part-time workers are women, it is likely to be a form of unlawful sex discrimination. Different treatment of full-time and part-time workers will only be lawful if it can be justified on objective grounds.
To comply with the law:
Where possible, these and similar benefits should be provided pro rata. In some cases, this may prove difficult. In the case of a benefit such as health insurance or company cars, that cannot easily be divided, employers will have to decide whether to withhold it from part-time workers. Employers may decide that the cost of extending such a benefit to part-time workers would be prohibitive. However, it will not be enough for employers to show that a benefit could not be applied pro rata. They must also show that the decision is justified on objective grounds.
Employers providing company cars or car allowance might, by way of best practice, calculate the financial value of the benefit to a full-timer and apply that value pro rata to a part-timer.
Alternatively, if the benefit or allowance was given to a full-timer, for example every year, then a part-timer working half the full-time hours might be given the benefit or allowance every two years.
Other benefits such as clothing allowance, travel allowance or staff discounts might also be extended to part-timers in line with the principles set out here.
To comply with the law:
Part-time workers, like their full-time colleagues, are entitled to a minimum of statutory annual leave, maternity leave, and parental leave. Many of these entitlements are extended or enhanced by contractual conditions. Part-time workers should have the same leave entitlements pro rata as their full-time colleagues.
To comply with the law:
The rights of part-timers in relation to public holidays and bank holidays may not always be clear.
Under the regulations, part-timers should not be treated less favourably than comparable full-timers in their entitlement to public/bank holidays. Allowing full-timers the day off, but not part-timers, is clearly less favourable treatment and unlawful under the regulations unless there is objective justification.
To comply with the law, an employer must treat part-time workers as favourably as they treat full time workers. In some circumstances it may be enough simply to give workers a paid day off if their day of work happens to coincide with the public holiday, without giving time off in lieu to those who would not ordinarily work on that day. This may produce a fair result, for example where a shift system means that full-time and part-time workers are equally likely to be scheduled to work on a public holiday. However, where workers work fixed days each week, such a practice could put part-timers at a disadvantage. For example, because most bank and public holidays fall on a Monday, those who do not work Mondays will be entitled to proportionately fewer days off. In many workplaces, these workers will predominantly be part-timers.
In such cases, it may be necessary to remove the disadvantage suffered by those staff who do not receive particular days off as a result of their particular working pattern, for example by giving all workers a pro rata entitlement of days off in lieu according to the number of hours they work.
Whether either of these approaches meets the requirements of the regulations will depend on the particular circumstances. Whatever approach they choose to adopt, employers should bear in mind the principal that it is unlawful to treat part-timers less favourably than comparable full-timers unless there is objective justification for doing so.
Employers or part-timers who are unsure how the law should be implemented in a particular situation should seek legal advice.
The regulations do not cover external recruitment. However, if recruiting employers do not consider applications from people who want to work part-time or job-share, then they will be limiting the field of applicants and may not recruit the best person for the job. They may also in certain situations be vulnerable to claims for indirect sex discrimination.
As best practice, we recommend that:
Part-time workers often suffer from others' perception that they are not interested in moving on from the job they are doing. Just because someone works part-time does not mean he or she does not want to continue developing a career. Reducing or blocking the chances of part-time workers to move around the organisation may demoralise them, or cause them to look for other job opportunities elsewhere. Conversely, allowing part-time workers to apply for other posts ensures that the employer will be able to pick the best person for the job, and will not be shutting out talented individuals.
It may not be necessary, or even practical, to check every post in an organisation for its suitability for a part-time worker. However, the fact that a post is currently being done full-time should not be used to prevent people who wish to work part-time from applying for it. The post can be looked at using the process outlined below for dealing with requests for reduced hours. Sometimes the hours the post necessarily requires are incompatible with the hours the applicant currently works. If the applicant would otherwise be suitable for the job, the recruiter could discuss with the applicant whether they would be able to work other hours in order to fit in with the demands of the job.
As best practice, we recommend that:
Jobsharing arrangements are a special form of part-time work, where a full-time job is divided between two part-time workers. The job can be divided in a number of ways to suit the circumstances of the workers and their employer. For example, one may work mornings, the other afternoons, or each may work 2½ days a week. Sometimes there is a hand-over period when both jobsharers are working.
This arrangement means both jobsharers have predictable hours, which allows them to make other arrangements (for example, childcare), while the employer knows there will always be cover. The employer also benefits from having two people working on a project, with their combined energy, skills and experience, rather than one, and is likely to have cover when one job sharer is away or on holiday.
However, it can be difficult to organise a jobshare arrangement, because of the need to find two workers who can do the job, are capable of working together and who want to work complementary hours. Some large companies and organisations organise a database of people who want to jobshare. This can be particularly useful in helping women with children who wish to return to work find a suitable jobshare 'partner'.
As best practice, we recommend that:
Currently, there is no legal right for an worker to be able to change his or her hours of work. This is a matter for negotiation between the worker and the employer. However, there have been some legal cases concerning women returning to their employer from maternity leave, where the courts have ruled that refusing them part-time hours was indirect sex discrimination. This case law means that employers need to think carefully whether there is a good business reason for refusing such a request. Also, if an organisation allows women to change their hours, then they must treat requests from men on the same basis or be liable for claims of direct sex discrimination.
As best practice, we recommend that:
Changing the total number of hours an worker works has profound implications for the commitments that person can take on outside the workplace. An increase in hours may hamper caring arrangements. A decrease in hours may cause serious financial difficulties.
In some cases, the operational needs of an organisation may make it necessary to change the number of hours that workers work. This is a contractual matter, and must be agreed with the workers concerned. Full consideration should be given to the circumstances of individual workers, and changes should be made with as much notice as possible. In some cases, insisting that a part-timer works full-time can constitute indirect sex discrimination.
Giving part-time workers less information on vacancies than full-time workers would be less favourable treatment. While it is unlikely that an employer would have a deliberate policy of denying information to part-time workers, organisations should examine their practices to see if there is anything which might disadvantage part-time workers. If a lot of vacancies are filled by word of mouth, managerial discretion, or other informal management practices, does this make it harder for part-time workers to find posts in areas which do not have any part-time workers? These points are important as part of an overall equal opportunities policy.
Employers need to be able to consider the best possible candidates for available posts. Equally, workers need to make informed decisions about varying their hours, or transferring between full-time and part-time work. Information on particular posts needs to be made available where part-time workers can see it. It also needs to be circulated in plenty of time, so that potential candidates have the opportunity to consider and plan any necessary changes in their out-of-work routine.
As best practice, we recommend that:
Larger firms may have formal or informal bodies for representing the workforce in discussions with management, such as works councils. These bodies may find it useful to be kept informed about certain aspects of the organisation's use of part-time workers. The exact details of what information is required should be worked out with the representatives themselves. Topics could include:
From time to time an worker may ask to be allowed to increase or decrease the hours he or she works. Below are set out a number of factors which an employer could take into account when considering whether to agree to such a request. This will make it easier for the employers to know whether part-time working would be advantageous to their organisation.
Any worker requesting a change in hours should try to present a good argument why this would help the organisation. Part-time work may not always be appropriate to the situation. The worker should be prepared to accept a refusal, if there are good reasons for it, or look for alternative ways of reshaping the job.
When workers request to work part-time, it is helpful if their employer has a procedure for handling their request. This could include some of the factors listed below. Even where a recognised procedure exists, there may need to be discussion focusing on the worker's tasks and responsibilities, and how a change in hours can fit in. This may require employer and worker to invest time and effort in order to work out an arrangement which suits them both. A successful solution will ensure that the job gets done, and the morale of the worker is enhanced.
Some of the factors to be taken into account may include:
Some of the factors to be taken into account may include:
In larger organisations it may be appropriate to consider:
Employers should also look at whether their training is arranged in a way which is inconvenient for part-time workers. For example, it can be difficult for part-time staff to attend residential courses if they have other commitments. It would be easier if they were able to attend courses which run at times when they are normally working. Employers should ensure that the needs of part-time workers are given proper weight when the structure, time and location of training is being planned.
As best practice, we recommend that:
Part-time workers should not lose out in their training simply because of their part-time status. In cases where employers cannot tailor the time and location of training to suit part-time as much as full-time workers, a range of other options should be looked at. Measures which might be considered to support the career development of the part-time worker include:
In a fast-changing job market, it is as important for part-time workers as for full-time workers to prepare for their future. Employers should consider all applications for vocational training and career development on their merits. Addressing the career development needs of part-time workers will also help employers to retain their staff.
In certain circumstances, part-time work can offer a form of training in its own right. Workers who are taking a career break, for example parents or carers, can find periods of part-time work a useful way to keep in touch with developments in their organisation. Employers should consider what training, on and off the job, would be most useful for workers in this situation. Properly handled such an arrangement can be a significant benefit to the employer. Not only does the organisation keep the services of the worker during the career break, but when the worker returns he or she will be able to play a full role in the organisation straight away.
