Specific protection is given to part-time workers by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the "Regulations"). This aims to ensure that part time workers are not treated any less favourably than their full time counterparts. It is important to note that the Regulations apply to both employees and workers. Workers are those who work under a contract of employment or other contract which requires that individual to carry out the work personally, falling just short of being classed as an employee.
In order to be identified as a part time worker (and thereby gain the protection of the Regulations), it must be established that the worker is paid either wholly or partly in reference to the time they work and the worker is not classed as a full time worker with regards to any custom and practice in relation to workers employed under the same type of contract. It is also necessary to examine whether that individual, once identified as a part time worker, has been treated less favourably than a full time comparator.
A full time comparator is an individual who:
- is employed by the same employer;
- is employed under the same type of contract - for example a part time worker cannot compare his terms and conditions to a full time employee under a contract of employment;
- carries out the same or similar work, bearing in mind levels of qualification, skill and experience; and
- works or is based at the same establishment as the part time worker.
If there is no such person at the same establishment but there is another individual who works at or is based at a different establishment who satisfies the first three criteria, then that person will be the appropriate comparator. A key aspect of the Regulations is that an actual comparator needs to be identified, unlike certain claims in relation to discrimination where a hypothetical comparator can be used to establish less favourable treatment.
Where an individual is a part time worker and they have identified a full time comparator, it is then necessary to show that the individual has been treated less favourably than the full time comparator by reason of their part time worker status. The final hurdle is to consider whether the treatment can be objectively justified by the employer. Less favourable treatment could be in relation to terms in the part time worker's contract or any other detriment arising from an act or omission by the employer.
Where a tribunal is asked to consider whether less favourable treatment has occurred, unless it is considered inappropriate in the circumstances, the pro rata principle applies. This means that, where a full time comparator is entitled to pay or another benefit, under the pro rata principle the part time worker should not receive any less than the proportion of that pay or benefit as determined by the hours worked by the part time worker when compared to the full time comparator. For example, where a full time comparator is entitled to a salary of £40,000, a part time worker who works 50% of the hours of the comparator will be entitled to £20,000 (unless the employer can objectively justify the difference). However, this principle may not always be appropriate in the circumstances, such as where a full time comparator is entitled to a company car. While offering half a company car to the part time worker may not be a practical solution, employers have a degree of flexibility to resolve any detriment - for example offering a less expensive company car or the proportionate cash equivalent in lieu.
Employers must therefore be careful to apply equal treatment principles to part time and full time workers in order to avoid falling foul of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.