Do you treat your Part Time Workers Appropriately?
The work/life balance is now an important feature of UK employment market practices, which often results in flexible and part-time working. Whilst it is sometimes difficult to accommodate, if employers get it right, this can often lead to loyal and hard working employees.
The Part Time Workers Prevention of Less Favourable Treatment Regulations 2000 (the Regulations) protect part time workers against less favourable treatment compared to their full time counterparts. A part time worker is any worker who works fewer hours than what is considered to be a full time worker in your business. The Regulations apply to all part time workers (not just employees) and applies equally to men and women. Employers should be savvy to the risks of additional sex discrimination claims in respect of less favourable treatment of female part time workers.
Less favourable treatment can include clauses in the contract of employment, for example entitlement to benefits or pension, or more general detrimental treatment, for instance if a manager was to organise team meetings specifically for a time when the part time worker would not be available to attend so as to exclude them. However, it is possible to justify less favourable treatment on objective grounds i.e. where it is a proportionate means to achieve a legitimate aim. In the example above, an objective justification could be that the meetings are arranged for that specific time because the staff are mobile sales men/women and it is the only time when all staff (other than the part time employee) are in the office and to call the meeting at another time would result in increased costs and lost work.
One of the most common questions in relation to part time workers is how should their holiday entitlement be calculated. It is important to get this right as a failure to do so could result in a claim for less favourable treatment or potentially for a female with childcare commitments, a sex discrimination claim. In general, paid holiday entitlement for part time workers should be calculated on a pro rata basis to that of a full time employee. The Working Time Regulations 1998 (the WTR), guarantees all workers a statutory minimum holiday entitlement and provides for 5.6 weeks (including bank holidays) paid leave per year for all workers irrespective of whether they are full time or part time. The WTR takes into account the fact that part time workers work fewer days per week on average than a full time worker, and so will accrue proportionally fewer days paid leave over the year.
For example, an employee who works two days each week would be entitled to the following (based on the statutory minimum):
5.6 weeks x 2 days worked per week = 11.2 days per holiday year.
Where an employer offers an enhanced holiday entitlement of, for example, 25 days plus bank holidays (33 days a year) to full-time employees, a part-time employee who works two days a week would be entitled to the following:
6.6 weeks x 2 days worked per week = 13.2 days per holiday year.
Both of the above calculations include the employee's entitlement to Bank Holidays. Bank Holidays are probably the biggest cause of confusion when it comes to calculating holiday entitlement for part-time staff as many employers grant bank holidays in addition to the basic holiday entitlement.
Some employers only allow part time workers paid time off (or time off in lieu) for public and bank holidays that fall on days when the employee would normally work. This raises issues under the Regulations because the result is that some part time workers are treated less favourably as they are receiving less holiday allocation (pro rata) than their full time colleagues. Unfortunately the law is unclear whether this actually amounts to detrimental treatment or not as the reason for the treatment may not be the workers part time status per se, but rather the fact they do not work on Mondays. The simplest way to achieve equality in this situation is to give part time workers a pro rated entitlement to all public and bank holidays and to calculate the workers full holiday entitlement including bank holidays and public holidays as a total figure. Then, where a bank holiday falls on a day when the worker would normally be required to work, they must use their holiday entitlement on that day. If the bank holiday falls on a day when the employee would not normally be at work, their entitlement is unaffected.
Of course, not all part-timers work full days, there are a variety of different working patterns. For example, someone might work a 19 hour week (as compared to a full-timer who works 38 hours). In that case, the holiday entitlement (including bank holidays) would need to be 50% of the full timer's entitlement (including bank holidays).
Employers should also be careful when it comes to calculating the amount of accrued but untaken holiday pay that should be paid to a departing part-time employee. For a full-time employee the calculation can be easy. If the full-time employee is entitled to the 28 days statutory minimum, holiday accrues at a rate of 2.33 days per month worked and the pay is 1/260th of their salary (because there are 260 working days in a year). These calculations will need to be pro-rated for a part-time employee. While employing part time workers gives rise to additional considerations such as those set out above, it also has a range of significant benefits to employers, such as:
- Being an efficient way to keep costs down in areas where full-time cover is not needed.
- Increasing recruitment and retention of highly skilled and experienced staff by offering family-friendly working practices. Rejecting flexible working requests on the basis of a policy not to employ part time workers without proper consideration of the request is likely to result in tribunal claims.
- Expanding the pool of potential recruits - part-time work tends to attract parents with younger children and older people, who may not want to work full time but can bring a wealth of skills, experience and expertise.
- Allowing businesses to respond to peaks in workload, reducing overtime costs and help to prevent the negative effects of stress and fatigue.
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