The law in the UK states it is unlawful to treat part time workers less favourably than equivalent full time workers on the basis that they work part time. In some cases treating both full time and part time workers in the same way, may amount to unlawful discrimination on the grounds of the worker’s part time status. This is because the pro rata principle employers are required to apply to part time workers under The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (with equivalent regulations applying in Northern Ireland) states that where a comparable full-time worker is entitled to receive pay or any other benefit, a part-time worker is to receive not less than the proportion of that pay or other benefit that the number of their weekly hours bears to the number of weekly hours of the full-time comparator.
For example, in relation to holidays, where full-time employees work a five-day week and are entitled to 30 days' paid holiday a year, an employee who works three days a week will be entitled to 18 days' paid annual leave. A failure to apply the ‘pro rata’ principle to part time workers, means the part time worker will have a claim if the worker can prove that the reason for that failure was the worker's part-time status.
A recent Employment Appeal Tribunal ruling that applies to employers in England and Wales provides clarification of when less favourable treatment amounts to discrimination specifically due to an individual’s part-time worker status.
In this employment appeal case, the Employment Appeal Tribunal upheld the finding of the employment tribunal that a part-time taxi driver was not treated less favourably than his full-time equivalent worker on the grounds of his part-time status.
In this case, a part-time taxi driver brought an employment tribunal claim to challenge his payment of a flat rate circuit fee of £148, which granted drivers access to the company's booking system. The driver argued that this fee amounted to less favourable treatment compared to full-time drivers, because being charged the same flat fee resulted in part-time drivers like him paying a higher fee proportionate to their hours worked. The employment tribunal dismissed his claim, concluding that the treatment was not solely due to his part-time status.
On appeal, the Employment Appeal Tribunal upheld the employment tribunal’s decision on the causation, emphasising that the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 required the less favourable treatment to be solely because the claimant was a part-time worker. In reaching this decision, the Employment Appeal Tribunal (reluctantly) decided to follow the previous ruling of the Scottish Court of Session, which sets down a narrow test whereby the requirement is that the part-time status is the sole cause of the less favourable treatment. Although the Employment Appeal Tribunal in England and Wales is not strictly bound by Scottish Court of Session decisions it decided the appropriate course was to follow it, referring to the public interest in consistency of approach between the different jurisdictions of the Employment Appeal Tribunal in Great Britain.
In this case, the Employment Appeal Tribunal noted that while the driver was technically treated less favourably because he worked part-time due to the flat fee representing a proportionally higher amount of his wages, when compared to equivalent full-time drivers there would be many other drivers who were similarly affected by the flat rate fee being high in proportion to hours worked, despite working full time.
This case clarifies that, as the law in England, Scotland and Wales currently stands and unless or until there is another appeal decision ruling otherwise, less favourable treatment in relation to pay and benefits will only amount to part-time worker discrimination if it is solely because of a worker’s part-time status. This means that it can be more difficult for a part-time worker to prove a case of part-time worker discrimination compared to other areas of discrimination law. However, employers should always take appropriate legal advice.
Fact sheet guidance on part time workers is available on the FSB Legal and Business Hub. FSB members can also contact the FSB Legal Advice line to take specific legal advice in relation to their employees.