About time

Employ part-time security staff? Think it's more flexible to employ part-timers than full timers? Think again. New Regulations now give part-timers the right to similar benefits enjoyed by full-timers. Part-time workers are defined by reference to full-time workers. A part-time worker is therefore someone who is paid wholly or in part by reference to the time he works and is not identifiable as a full-time worker.

The Part-Time Workers Regulations introduced by the Government last month has widened the original scope of protection afforded. It now includes workers, not just employees. In other words, anyone working under a contract of employment or any other contract where the worker provides services personally is legally covered by the regulations. This includes agency workers and home workers. Only those who are both self-employed and in business on their own account are excluded from the regulations.

Treatment by law

Under the new regulations, it's unlawful for a part-time worker to be treated less favourably than a comparable full-time worker simply because they work part-time. This applies in terms of the contract or by subjecting them to any other detriment, whether by act or omission. The one exception is if the difference in treatment is justified on "objective grounds" such as a disproportionate cost or a real business need.

A comparable full-time worker must be an actual worker, who is engaged in the same or broadly similar work as the part-time worker; has a broadly similar level of qualification, skills and experience to that of the part-time worker; and works at the same establishment as the part-time worker – or where there is no full-time worker, then at a different establishment.

This need for there to be a comparator is similar to the laws relating to discrimination and equal pay.

A worker may request a written statement from an employer if he believes that he has been treated less favourably on the grounds of part-time working. Any written statement which is given in response by the employer can be used to draw an inference in a tribunal as to whether or not there has been an infringement of the right not to be treated less favourably. A worker is entitled to that statement within 21 days of request.

Pay and conditions

• Rate of pay and over-time – The regulations will have a direct effect on pay. Part-time workers must not receive a lower basic rate of pay than comparable full-time workers, unless it is objectively justifiable. In terms of over-time, once part-time workers have worked more than the normal full-time hours, they will then become entitled to receive the same hourly rate of over-time pay as comparable full-time workers.

• Profit sharing and share option schemes – Part-time workers should be allowed to participate in any profit sharing and share option schemes open to full-time workers, unless there are objective grounds for exclusion. Benefits under such schemes for part-time workers would be pro-rata to those of full-time workers.

• Contractual pay and maternity pay – Just as benefits that full-time workers receive must also apply to part-time workers pro-rata, so the same applies to contractual pay and maternity pay, again with the only exception being if different treatment is justified on objective grounds. Accordingly, part-time workers should not be treated less favourably than full-time workers in terms of the rate of contractual sick pay or maternity pay, the length of service required to qualify for payment, or the duration of payment.

• Health insurance, subsidised mortgages and staff discounts – Benefits such as subsidised mortgages and staff discounts should be available to part-time workers unless there is objective justification for excluding them. The DTI's Compliance Guidance points out that where a benefit such as health insurance cannot be applied pro-rata, that in itself is not objective justification for not providing it. It goes on to state that objective grounds might include disproportionate cost or a real business need, but it is difficult to envisage such overwhelming arguments being available. In practice, most benefits will have to become universally available.

• Occupational pensions - Employers must not discriminate between full-time and part-time workers over access to pension schemes, unless different treatment is justified on objective grounds. Calculation of benefits from the pension scheme for part-time staff should be on a pro-rata basis of the calculation for full-time workers. Some scheme rules may need to be revisited to ensure compliance. The broader scope of workers may also raise issues.

Access to training

Employers must not exclude part-timers as a matter of principle, simply because they work part-time. While the regulations do not cover how training and practice is organised to accommodate part-timers, employers should be aware that it could fall within indirect sex discrimination law.

For example, if the terms of complying with arrangements as to timing or venue have a disproportionately adverse impact on part-timers, employers ought to be aware of unlawful discrimination. This is because more women than men might be affected.

Leave, holiday and breaks

Part-time workers are, of course, entitled to a minimum of statutory annual leave, maternity leave, parental leave and time off for dependents where they qualify. Where statutory entitlements have been enhanced with contractual conditions, the same entitlements as their full-time colleagues should be provided for part-time workers on a pro-rata basis.

Public holidays and bank holidays present a particular problem. Because they mainly fall on a Monday, those part-timers who do not work Mondays are at a disadvantage (assuming those holidays are granted to the workforce). The DTI's compliance guidelines recommends that employers compensate for this shortfall by applying the holiday entitlement to these workers pro-rata, by converting those holidays into hours with pro-rata entitlement, for instance.

Severance notices

• Redundancy – the criteria used to select jobs for redundancy must be objectively justified, and part-time workers must not be treated less favourably than comparable full-time workers.

• Unfair dismissal – an employee will be treated as automatically unfairly dismissed, irrespective of length of service, where they: are dismissed because they brought proceedings against the employer under the regulations; requested a written statement of reasons for different treatment; gave evidence or information in connection with proceedings being brought against the employer; otherwise acted under the regulations in relation to the employer or alleged that the employer had infringed them; refused to forego a right under them, or if the employer dismisses them because he believes or suspects that the employee has done or intends to do any of these things. A worker has the right not to be subjected to any detriment by any act or omission on the same grounds.

Remedies

A worker can bring a complaint to an employment tribunal within three months alleging that there has been less favourable treatment. However, with regard to discrimination claims, the tribunal will have a wider discretion than in ordinary unfair dismissal cases for out-of-date claims, to allow them to proceed where it is right to do so.

An employment tribunal can then make a declaration as to the rights of the worker and order the employer to pay compensation, together with recommending action that the employer should take. The amount of compensation is that which is "just and equitable", having regard to the infringement and any loss attributable to the infringement.

There is no limit on the loss, but unlike discrimination claims, an award will not include compensation for injury to feelings. Essentially, it is designed to put right what should have been paid. The only exception is where there was a failure to allow access to an occupational pension scheme, in which case recovery is limited to the preceding two years.

If there is a failure to comply with a recommendation made by the tribunal, the tribunal can increase the amount of compensation to be paid.

These regulations provide an attractive direct claim for pay irrespective of gender on a simplified basis. Also, there is now a direct free standing ability to bring a claim for any loss suffered, without the potential disincentive of the emotive label of discrimination. It's also more straightforward. It's likely that it will lead to a greater awareness of rights among part-timers and employers must ensure there's no differential treatment which cannot be objectively justified.