Regulations introduce new rights for part-time workers
Regulations that will come into force in July 2000 introduce new statutory rights for part-time workers in the UK. We highlight the key points of the Regulations, noting a significant change in their coverage following consultation on draft Regulations. Reference is also made to the accompanying best-practice guidance.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 were laid before Parliament on 3 May and are due to take effect on 1 July 2000. The Regulations are based on Council Directive (97/81/EC) on the framework agreement on part-time work (EU9712175N) and follow consultation on draft Regulations (UK0002153N).
The EU framework agreement/Directive on part-time work (EU9706131F) has two objectives: the removal of discrimination against part-time workers; and the development of part-time work on a voluntary basis. The UK Regulations address the first objective by giving part-time workers the right in principle not to be treated less favourably than full-time workers of the same employer who work under the same type of employment contract. The best-practice guidance issued with the Regulations is intended to address the second objective. According to trade and industry secretary, Stephen Byers, the legislation "safeguards the position of part-timers whilst avoiding unnecessary burdens on business".
Key points of the Regulations
Equal rights for part-time workers
Under the Regulations, part-time workers in the UK will for the first time have the following statutory rights:
- to receive the same hourly pay rate as comparable full-timers;
- to receive the same hourly rate of overtime pay as comparable full-timers, once they have worked more than the normal full-time hours;
- to receive the same contractual entitlements to sick pay and maternity pay, on a pro rata basis, as comparable full-timers;
- to receive the same contractual entitlements to holidays, maternity leave, parental leave and career breaks;
- to be treated no less favourably than comparable full-timers in redundancy situations;
- not to be excluded from training because they work part-time; and
- not to be discriminated against over access to pension schemes.
Less favourable treatment will only be justified if it can be shown that it:
- is to achieve a legitimate objective, for example, a genuine business objective;
- is necessary to achieve that objective; and
- is an appropriate way to achieve the objective
Part-timers who consider their rights to be infringed have the right, within 21 days of a request to their employer, to receive a written statement of the reasons for their treatment. They have the right, within three months of the less favourable treatment, to take a complaint to an employment tribunal. If infringement is proven, part-timers may receive compensation and employers may be ordered to take remedial action.
Extension of coverage from employees to workers
In a significant change to the draft Regulations, their coverage has been extended from "employees" to "workers". According to a report of the House of Commons Select Committee on Education and Employment, issued in March 2000, a number of trade unions had received legal advice that it was "strongly arguable" that the narrower definition of "employee" (ie those working under a contract of employment) contained in the draft Regulations would not properly implement the original Directive and was vulnerable to legal challenge. The broader definition means, for example, that casual workers are now covered by the Regulations. This extension was welcomed as "good news" by the Trades Union Congress (TUC) which had previously criticised the government's "minimalist" approach (UK0002153N).
Definition of comparable full-timer
The statutory rights for part-time workers rely on the existence of a comparable full-time worker. Under the Regulations, a comparable full-timer must be (a) employed by the same employer under the same type of contract as the part-timer, and (b) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience. In the first instance, the full-time comparator will be at the same establishment, but if no comparable full-time worker exists, a part-timer can be compared with a full-timer at another establishment, so long as they satisfy conditions (a) and (b).
Following consultation, the government expanded the range of full-time comparators. An addition to the original proposals is that workers who change to part-time work may now compare their conditions with their previous full-time contract. This also applies when full-time workers take up part-time work after a leave of absence of 12 months or less. The government has introduced this to reassure staff (for example, women returning from maternity leave) that they will not be penalised for changing to part-time hours. However, this extension did not change the original estimate that 1 million part-timers have a full-time comparator.
Widening the range of full-time comparators in this way has not addressed TUC concerns. Its February 2000 response to the Department of Trade and Industry consultation on implementing the part-time work Directive noted that part-time workers commonly work in grades, sectors or industries where there are no comparable full-time employees and argued for the inclusion of a hypothetical comparator. The concept of a hypothetical comparator already exists in the Sex Discrimination Act 1975 and allows for employment tribunals to use oral and documentary evidence to infer how an employer would have treated an actual comparator if one existed. The report of the House of Commons Select Committee on Education and Employment also contains a recommendation that the government consider the use of a hypothetical comparator. The government rejected these calls and did not include the concept in the Regulations – a decision welcomed by the Confederation of British Industry (CBI).
Clause 5 of the social partners' agreement appended to the Directive requires that the social partners should identify and review obstacles that may limit opportunities for part-time work and, where appropriate, eliminate them. The government has issued best-practice guidance that contains a number of suggestions for employer action and recommendations for best practice. The guidance is to form part of an ongoing programme of information. Once the Regulations are in place, this is to include a publication with the social partners. The best practice guidance is organised under two headings: widening access to part-time work; and Making part-time work more accessible.
Widening access to part-time work
This section contains suggestions for how employers may increase the availability of part-time work. As best practice, the government recommends that:
- employers review periodically whether advertised full-time posts could be performed by part-time workers;
- when approached by an applicant wishing to work part-time, employers consider whether part-time work arrangements could fulfil the requirements of the job;
- at all levels of the organisation, including skilled and managerial positions, employers should seek to maximise the range of posts designated as suitable for part-time working or job-sharing;
- employers seriously consider requests for job-sharing;
- larger organisations keep a database of those interested in entering job-sharing arrangements;
- employers look seriously at requests to change to part-time working, and where possible explore with their workers how this change could be accommodated;
- employers consider establishing a procedure for discussing with workers whether they wish to change from full-time to part-time for any reason;
- employers should periodically review how individuals are provided with information on the availability of part-time and full-time positions; and
- organisations should consider how to make it easier for workers to vary their hours.
Making part-time work more accessible
This section contains suggestions on how employers may handle requests to work part-time and organise training for part-timers. Its principal recommendation for best practice is that training should be arranged so as to ensure that it is as conveniently located and timed for part-time staff, unless this is not possible.
There are approximately 6 million part-time workers in the UK – 80% of whom are women. The government believes that all will benefit from added security as a result of the Regulations. It estimates that 1 million part-timers have a comparable full-time employee and that equal treatment could directly benefit 400,000 part-time workers through increases in pay and non-wage benefits. The biggest impact is likely to be in wholesale and retail.
The Regulations were welcomed by the TUC as "an important milestone on the road to achieving justice and equality" for the UK's part-time workers. In the past, part-time workers had to use claims of indirect sex discrimination to argue for equal rights to full-timers. Amending the Regulations to include "workers" will also ensure that more part-timers benefit from the legislation. However, as indicated by Stephen Byers, the Regulations are being introduced with a "light touch".
This light touch can be seen in four key areas. First, the decision not to introduce a hypothetical comparator is likely to exclude considerable numbers of part-time workers (eg cleaners, caterers and bar staff) who are unlikely to find a full-time comparator in identical jobs. Second, the government's decision not to issue a statutory code of practice is likely to dampen the effect of best-practice suggestions (UK0002153N). Whilst the CBI welcomed the dropping of the code, the TUC had seen it as a means of providing clear guidance to employers. Third, the government's interpretation of clause 5(2) of the framework agreement means that UK workers have no legal right to refuse to change their hours. Clause 5(2) states that a worker's refusal to transfer from full-time to part-time work or vice versa is not a valid reason for termination of employment. However, because this provision is included in the best-practice guidance rather than the Regulations themselves, workers have lost an opportunity to gain new statutory rights in this respect. Fourth, although the guidance encourages employers to look seriously at requests to change to part-time working, women wishing to reduce their hours after maternity leave still need to claim under the Sex Discrimination Act for such rights. The Directive itself did not include such rights, but a number of interested parties were hoping that the government would take this legislative opportunity to provide them.
Whilst the Regulations do introduce new statutory rights for part-time workers, it is too early to say how many of the 6 million workers concerned will benefit. (Anne McBride, IRRU)