Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulation 2000 (PTW regulation) it is unlawful to treat part-time workers less favourably on the ground of their part-time status, unless the employer can show that there is objective justification for the difference in treatment.
While the PTW regulation has been in force for a number of years, there have been relatively few cases reported. This may be due to the strict requirement that it has to be shown that the employee’s part-time status is the only reason for the less favourable treatment.
The problems that this can cause were illustrated in the recent case of Forth Valley Health Board v James Campbell where causation was the main issue in dispute. While the claimant worked fewer hours than some of his colleagues, the key question was whether he had been treated less favourably on the ground that he was a part-time worker.
Mr Campbell, a phlebotomist, was contracted to work for the health board for an average of 16 hours per week. This was on a six-week rota during which his shifts varied in length.
On weekdays he would work four-hour shifts between 7.30am and 11.30am without a break. He complained about this and pointed out that his colleagues, who worked over six hours on those same days, would get a 15-minute paid break.
The health board rejected his complaint and pointed out that he did get the 15-minute paid break when he did six-hour shifts over the weekends.
Campbell brought a claim under the PTW regulation on the basis that denying him the break on weekdays during the shorter shifts was less favourable treatment due to his part-time status. He submitted that his treatment should be compared with that afforded to his colleagues who worked longer hours on those days.
At first instance, Campbell’s arguments were accepted – he had been denied a right to a paid break because he had been on a shorter shift.
However, the Employment Appeal Tribunal held that there had been no causal link shown between the shift length and part-time status. That meant there had been no basis in law on which it could be concluded that the difference in treatment between Campbell and his full-time comparators was ‘on the ground’ that he was a part-time worker, far less that his part-time status was the sole ground for such difference in treatment.
The fact that he, like other workers, did receive the benefit of the paid break when working at weekends on shifts that were of six hours duration or more demonstrated that there wasn’t the necessary link with his part-time status for the claim to succeed.
The decision highlights the importance of identifying the reason for the treatment in any claim of less favourable treatment brought by a part-time worker. In reaching the conclusion that part-time status was not the cause of the treatment in this case, it was taken into account that it was the length of the shift that dictated whether a break was allowed and that part-time worker status was not exclusively determined by the length of their shifts as they could vary in practice.
However, to avoid disputes arising, employers should take steps to ensure that opportunities and benefits that apply in relation to full-time staff are proportionately applied where possible for part-time staff. Not only can unjustified differences generate claims under the PTW regulation, but they might also trigger claims in respect of indirect sex discrimination given that statistically women might find it more difficult to work full-time hours.
Benedict Gorner is a partner in the employment unit at Gateley PLC