Part-time working - here at last?

Susan Mayne looks at the growth of part-time working in the UK and the position of part-time workers under the new Part Time Employees Regulations 2000

The little heralded draft Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000 (the “draft Regulations”) are set to come into force soon. The principles enshrined in the Directive on Part-time Work are reflected in the draft Regulations. Although many of the rights may presently be enforced by women indirectly by claiming sex discrimination (on the basis that 80% of the UK’s 6 million part-timers are women) the draft Regulations will give direct rights to part-timers.

Background

A significant change in the UK labour market has been the growth of part-time work. This partly reflects a trend towards more flexible working practices and partly reflects the increasing number of women returning to work after the birth of their children. Against the background of Europe’s encouragement of family friendly working (reflected in UK law in, for example, the introduction of parental leave, time off to care for dependants and the lowering of qualifying service to one year for extended maternity leave) the Government is encouraging part-time work not as a second best option but as a positive choice for those who wish to adapt working patterns to fit in with their personal circumstances.

The part-time work force predominantly consists of women and it is for this reason that women have been able to lodge indirect sex discrimination complaints against their employers when they have been refused a return to work on a part-time basis or have been given less favourable terms and conditions than their full time colleagues. However, women bringing such complaints would have to meet the necessary requirements of the sex discrimination legislation, namely that as women they have been disproportionately disadvantaged by the requirement or condition to work full time and that they have suffered a detriment. Whilst both these hurdles have become increasingly easy to overcome when complaints of this nature are brought before a tribunal, many employers still fail to understand that part timers cannot be treated less favourably than full time workers e.g. in access to promotion. The draft regulations

The draft Regulations and accompanying Notes were under consultation until 27th February. The draft Regulations do not impose a heavy burden upon employers - the Government has chosen to implement the Regulations with a “light touch” in the hope that businesses will adopt the spirit of encouraging the facilitation of part-time working and viewing it as equally valid as full time working. A part-time employee is defined as someone who is paid by reference to the time he works and is not identifiable as a comparable full time employee in the organisation. The draft Regulations apply only to employees and not other types of worker. The draft Regulations and Notes cover the following matters.

Rate of pay

Part-time employees should receive the same hourly rate as comparable full time employees unless a lower hourly rate is justified on objective grounds (e.g. performance related pay scheme).

Overtime

Part-time employees should receive the same hourly rate of overtime pay as comparable full time employees, once they have worked more than the normal full time hours.

Contractual sick and maternity pay Part-time employees should not be treated less favourably than full time employees in terms of:

the rate of sick pay or maternity pay;

the length of service required to qualify for payment;

the length of time payment is received.

Occupational pensions Employers must not discriminate between full time and part-time employees with respect to access to pension schemes unless this is objectively justifiable. Calculation of benefits from the pension scheme for part-time staff should be on a pro rata basis.

Access to training Employers should not exclude part-time staff from training simply because they work part-time.

Leave/holidays/breaks: annual leave, maternity and parental leave; career breaks The contractual holiday entitlement of part-time staff should be pro rata to that of full time employees: contractual maternity leave and parental leave should be available to part time employees as well as full time employees.

career break schemes should be available to part time employees in the same way as for full time unless their exclusion is objectively justifiable

Redundancy The criteria used to select jobs for redundancy should be objectively justified and part-time employees must not be treated less favourably than comparable full time employees.

General Part time employees also have the right to receive a written statement of reasons for less favourable treatment. Failure to provide such a statement (or to provide one which one is evasive or equivocal) entitles a tribunal to draw an inference in any proceedings under the draft Regulations that the right complained of has been infringed. A part-time employee also has the right not to be subjected to a detriment and may claim automatic unfair dismissal if the reason for the dismissal or detriment is one of the following:

(a) that the employee has:

brought proceedings against the employer under the draft Regulations;

requested from his employer a written statement of reasons;

given evidence or information in connection with such proceedings brought by any employee;

otherwise done anything under the draft Regulations in relation to the employer or any other person;

alleged that the employer has infringed the draft Regulations;

refused to forego a right conferred on him by the draft Regulations; or

(b) that the employer believes or suspects that the employee has done or intends to do any of the above matters.

It should be remembered that the draft Regulations apply both to men and women, allowing men the same rights as women.

There is no specific right to work part-time, e.g. after maternity leave, which remains covered by the sex discrimination legislation.

The way forward

It is worth noting that in contrast to other European countries, part-time and flexible working have developed in the UK in the absence of a specific Government policy. Many of these rights have been enforced through the back door and it is hoped that the “light touch” proposed by the Government will encourage further development. However, too much of a “hands off” approach may lead employers to think that part-time and flexi working is atypical and, to some extent, second class. This is clearly not the case. It is accepted that there may be increased costs (e.g. increased training costs in allowing part-time employees to attend alternative dates for training courses). However, encouraging good workers back to work on a flexi basis which allows them to fulfil their working potential whilst attending to other personal commitments is clearly good sense.

Employers who take on board the spirit of the draft Regulations and the Sex Discrimination legislation should begin to appreciate the benefits that flexi working can bring to their organisations.