Part-time workers – the rise in unfair treatment claims

More employees are requesting flexible working and tribunal claims by part-time workers are increasing. Croner-i examines the issue and how such claims can be avoided

The onset of the COVID-19 pandemic and the introduction of workplace restrictions, furlough and employment uncertainty has led many employees to seek improvements in their work-life balance; including many requests to reduce working days or hours and to adopt part-time shift patterns.

Other employees 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 part-time working regulations of over 767%. This is the sharpest rise in tribunal case topics over the past 18 months.

What is a part-time worker?

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. While full-time work is usually 35 hours per week, individual organisations can set their preferred full-time working arrangements. As such, it is possible for an employee to work 35 hours per week yet still have part-time status, if the full-time equivalent for their role is 40 hours per week.

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

The rise may be attributed to the increase in the number of part-time workers because of Covid-induced reduced working hours. Alternatively, it may be that part-time workers are generally raising more complaints that they are being treated unfavourably during redundancy selection or through enforced changes to terms and conditions or TUPE processes.

Whatever the cause, the tribunal statistics act as a warning to employers that part-time workers are protected by law under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. 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 hours. Where relevant, these claims can be made in addition to other unfair dismissal, constructive dismissal and/or discrimination claims.

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, such as a company phone/laptop or travel allowance; 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 must also be able to show that the treatment was based on their part-time status and identify a comparable full-time worker who didn’t experience the same situation. An appropriate comparator would be someone employed by the same employer on the same type of contract at the same establishment and who is engaged in the same or broadly similar work (e.g., in terms of skill, qualification and experience). The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 highlight that apprentices are not employed on the same type of contract as non-apprentices and workers are on a different type of contract from employees, so can’t be comparators for the purpose of raising a claim.

However, in the case of Roddis v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) found than an associate lecturer on a zero-hours contract was employed on the same type of contract as a full-time permanent academic lecturer. It was understood that both employees were engaged under the same type of employment contract, with both having set notice periods and statutory protection from unfair dismissal. The fact that one was a full-time permanent employee, and the other was on zero-hours did not mean that they should be treated differently — this would go against the purpose of the Part-Time Workers Regulations.

How can organisations avoid part-time worker claims?

To avoid the risk of claims, organisations should pro-actively 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 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; disciplinary records; and length of service. 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 protections. Organisations cannot refuse to transfer part-time workers if the work they do will remain available. Doing so will breach TUPE Regulations and risk claims of unfair dismissal.

Organisations should also remember that in situations where full-time workers become part-time workers (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, should be adjusted in the same way. Essentially, the former contract serves as the full-time comparator when determining if there is any less favourable treatment and will apply even when there is not a separate full-time comparator in post.

Ultimately, the most important point for employers to remember is that workers cannot be placed at a detriment due to their part-time status.

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