Employment Contracts

by Kate Russell

Part timers

Traditionally, part timers have had a raw deal in the workplace. They tended to have to work longer before gaining paid holidays or being eligible to join the organisation pension scheme, and they were often selected for redundancy before full timers.

Protection against less favourable treatment extends to employees and workers, but not self-employed staff. There are no maximum or minimum working hours. Part time workers are those who work fewer hours than their full time equivalents.

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

The aim of these regulations is to ensure that part timers are treated no less favourably in their working conditions than comparable full timers, unless the less favourable treatment is justified on objective business grounds.

Discrimination and part time workers

In British Airways v Pinaud [2017] Mrs Pinaud had been employed by British Airways for about thirty years. She was initially employed on a full time basis, and started to work part time after a period on maternity leave.

Some long serving crew worked on a contractual working pattern. The full time pattern was called the ‘6/3 pattern’ – six days off and three days on. Over the year, this means that the full time crew member was available for work 243 days and off for 122 days.

The part time pattern to which Mrs Pinaud had moved was called the ‘14/14 pattern’. It was expressly described as a ‘50% contract’, and the annual basic salary was 50% of that which the full time crew member received. The pattern was 14 days on and 14 days off and within the 14 days on, the part time crew member had to be available for 10 days. Over the year, this meant that the part time crew member had to be available for 130 days (i.e. 53.5% of the number of days on which a full time worker was required to be available).

Part time and full time crew members had to bid for work on available days. Actual hours could fluctuate and there was no clear pathway from days of availability to hours worked, or even precise days worked. The annual basic salary, however, did not vary with the number of duty hours.

Mrs Pinaud argued that, during her years as a part time worker, she had been treated less favourably on the grounds of her part time worker status because she had to be available for 53.5% of full time hours, but was paid only 50% of a full time salary. British Airways disagreed that there had been less favourable treatment, referring to statistics which showed that, broadly speaking, she had worked 50% of the hours of her comparator, and argued that any difference would be trivial. The tribunal agreed with Mrs Pinaud, and the EAT upheld the tribunal's decision on this, finding that there had been less favourable treatment.

While disagreeing that there had been less favourable treatment, British Airways argued that any less favourable treatment was justified. It said that its legitimate aim had been to provide a part time shift pattern which was workable, predictable, practical, flexible and popular with cabin crew to enable BA to run its business effectively and the cabin crew to organise their home lives efficiently. It also said that the impact on Mrs Pinaud had been limited because the statistics showed that she was not in practice required to work more hours than her full time comparator. The tribunal agreed that BA had a legitimate aim. However, it said that the statistics were irrelevant to the question of justification, and did not take them into account. It held that the less favourable treatment was not justified, because a non-discriminatory means of achieving the same legitimate aim would be to simply re-name the part time 14/14 contract as a part time 53.5% contract and pay an annual salary of 53.5% of the full time salary for the 6/3 working pattern.

The EAT agreed with the tribunal that BA had a legitimate aim. However, the EAT held that the tribunal was wrong to have regarded the statistical evidence as irrelevant to the question of justification. The EAT was sceptical of BA’s argument, but the judge thought that its case had to be addressed by looking at the statistics. Accordingly, the EAT remitted the question of justification to a freshly constituted tribunal for consideration of the statistical evidence put forward by British Airways on the actual impact of the part time worker.

In light of this case you should review policies, working practices and pay arrangements from time to time to make sure that they do not result in less favourable treatment of part time workers. If there is any less favourable treatment, consider whether they have a legitimate business aim, and, if so, crucially whether there is a less discriminatory way of achieving that aim.

Comparators

Claims under the Part-time Workers Regulations are limited to part timers employed on the same type of contract as their full-time comparator doing ‘the same, or broadly similar’ work.

Zero hours employees can compare their treatment with that of full-time permanent employees when bringing a claim under the Part time Workers Regulations. The different terms of the contract are not a basis for finding that the contracts are of a different type.

Employers should ensure that they do not treat employees employed on zero-hours contracts less favourably than full-time employees where their work is broadly similar, unless this treatment can be objectively justified.

Example

Mr Roddis was employed as a part-time associate lecturer on a zero-hours contract. He brought a claim under the Part-time Workers Regulations seeking to compare himself to a permanent full-time lecturer. At a preliminary hearing, the tribunal ruled that Mr Roddis was an employee employed under a zero hours contract and he could not compare himself with the permanent full-time lecturer as they were not employed on the same type of contract.

Mr Roddis appealed successfully to the EAT. Having found that both Mr Roddis and his comparator were employed under contracts of employment, the EAT said it followed that they were employed under the same type contract. A zero-hours contract does not of itself constitute a different type of contract as that would result in a zero-hours employee never being able to compare himself with a full-time worker.

The case was remitted to the employment tribunal to determine whether Mr Roddis and his comparator were engaged in the same or broadly similar work and whether any less favourable treatment was objectively justified.

Comparisions are straightforward where the only difference between full and part timers is the number of hours worked. If the contracts or work are not identical, it is likely to be more problematic. However, differences in skills and experience or extra duties will not necessarily prevent a part-time worker claiming the same pay and benefits as a full-time worker where part timers can compare themselves with full timers on the ‘same type of contract’ who perform the same or broadly similar work having regard to similarity of qualification, skills and experience.

Example

The main responsibility of part-time fire fighters is the same as full-time fire fighters – to fight fires. The part-time fire fighters had less favourable terms of employment and sought to challenge these before the courts so that their terms were equal to those of full-time fire fighters.

A stumbling block to their claim was that the full- and part-time contract terms were different. Full timers worked shifts, whereas part timers committed themselves to the fire service for periods of training and on-call time each week, but had separate employment outside the service. Their main duties were the same, but full timers had more duties and training. Protection is offered where the work is the ‘same or broadly similar’. The tribunal decided the contracts were dissimilar because their terms were different. The House of Lords took a different view and stated that, when deciding whether work is the same or broadly similar, tribunals should look at the similarities in the work, rather than at the differences in the work.

The Lords said the legislation’s objective was to encourage part-time work and avoid less favourable treatment of part timers, so a broad-brush approach should be taken. The contract terms did not have to be identical – in fact, they were likely to differ. Both groups of fire fighters had the same type of contract, and the fact the terms were different did not prevent similarity.

Part-timers’ rights

Part-timer workers have the following rights:

  • Receiving the same rates of pay (including overtime pay), once they have worked more than the normal full-time hours
  • Not being treated less favourably for contractual sick pay or maternity pay purposes, or discriminated against over access to pension schemes or pension scheme benefits
  • Not being excluded from training simply because they work part time
  • Receiving holiday entitlement pro rata to that of comparable full timers
  • Having career break schemes, contractual maternity leave and parental leave made available to them in the same way as for full-time employees
  • Being treated no less favourably in the criteria for selection for redundancy.
Example

P worked part time for H Ltd. In January 2001, H Ltd told P that if she wished to remain in employment she would have to extend her working hours to full time as it had decided to reduce the number of accounting assistants to three full-time employees. P had three other colleagues performing the same job. They all worked full time and none them had been employed by the company for more than a few months. P offered to increase her hours to 32.5 hours per week (only five hours less than the full-time workers) but was unable to agree to work full time due to personal reasons. She was subsequently made redundant and complained to tribunal that she had been treated less favourably because of her part-time status.

The tribunal found that the company had unfairly dismissed P and that she had been treated less favourably than a comparable full-time employee on the basis of her part-time status. She was awarded £50,550 as a compensatory award.