Danny Done, managing director of Portfolio Payroll, explores why there has been such a sharp increase in tribunals relating to part-time workers

---

The onset of the pandemic saw a shift in employees’ priorities, with many more wanting to submit flexible working requests to improve their work-life balance, including requests to reduce working days and hours or to adopt part-time shift patterns.

Others may have been forced to decide between reducing their working hours or facing redundancy action due to the decrease in demand for certain roles and the widespread closure of businesses because of the different lockdown restrictions. Either way, alleged unfair treatment of part-time staff has led to an increase in claims relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 of over 767%. This is the sharpest rise in tribunal case topics over the past eighteen months.

In UK employment law, a person who works part-time is anyone who works less hours than expected of a full-time worker in the same organisation. As such, it is possible for an employee to work thirty-five hours per week yet still have part-time status, if the full-time equivalent for their role is forty hours per week.

 

Why has there been an increase in part-time worker claims?

The rise may be attributed to the increase in the number of part-time workers because of Covid-induced reduced working hours. Or, it may be that part-time workers are generally raising more complaints that they are being treated unfavourably during redundancy selections, enforcing changes to terms and conditions or processes instigated when a transfer under the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) occurs. The tribunal statistics act as a warning to employers that part-time workers are protected by law. Workers can claim compensation through the employment tribunal if they are dismissed or subject to less favourable treatment or detriment because of their part-time working status.

 

Why might a part-time worker make a claim?

There are several different claims part-time workers can make, including: receiving a lower hourly pay than their full-time equivalents; not being considered for promotions that are offered to full-time staff; not being given the same benefits; being considered for dismissal before full-time staff; and not having the same contractual entitlements, like enhanced annual leave or sick pay.

To make a claim, the employee must be able to establish that they work part-time and have been treated less favourably in terms of their contractual entitlements or by being subjected to a detriment.

They also must show that the treatment was based on their part-time status and identify a comparable full-time worker who didn’t experience the same treatment. An appropriate comparator would be someone who is employed by the same employer on the same type of contract at the same establishment and engaged in the same, or broadly similar, work (e.g., in terms of skill, qualification and experience). The regulations highlight that apprentices are not employed on the same type of contract as non-apprentices; and, whilst the claim can be made by those who fall into the wider employment status bracket of worker, workers are on a different type of contract from employees, so can’t be comparators for the purpose of raising a claim.

 

How can organisations avoid part-time worker claims?

To avoid the risk of claims, organisations should proactively take steps to support their part-time workers and ensure they receive the same basic entitlements as comparable full-time colleagues. They should not select employees for contractual changes or make them redundant solely based on their working hours. Where redundancies are needed, organisations should apply fair selection criteria across all affected employees, to objectively decide who should stay on and who should be made redundant. Key elements to include in the criteria include: skills, qualifications and aptitude; standard of work and performance; attendance records and disciplinary records. An in-depth consultation process further ensures employees are treated fairly and consistently. In situations where TUPE rules apply to a change in employer, part-time staff should be afforded the same opportunities and protection. Organisations cannot refuse to transfer part-time workers if TUPE applies to them. Doing so will breach the regulations and risk claims of automatically unfair dismissal.

Organisations should also remember that, in situations where full-time staff become part-time staff (e.g., after accepting a flexible working request or enforcing a reduction in hours), employees are entitled to the same terms and conditions as their former full-time contracts. This means they should be given the same hourly rate; however, their monthly salary can be reduced on a pro rata basis to reflect the work they do. All other contractual entitlements, such as annual leave etc., can be similarly reduced in the same way.

Importantly, organisations will only be liable under the regulations if they cannot objectively justify their part-time worker practices. 

• Policy article
• Professional magazine