Employment Update: Part-time Workers

28 April 2008

Discrimination does not have to be solely on grounds of part-time status for a claim to succeed.

In Sharma and others v Manchester City Council the EAT has recently considered an interesting claim under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The Claimants were part-time lecturers in adult education. The council employed lecturers on different kinds of contract including: full-time; part-time on a pro rata basis; fixed-term workers who were required to work a certain number of hours each year; and part-time workers who worked under a collective agreement that each year only guaranteed them one-third of the hours they had worked the previous year.

The Claimants fell into the last category. When the adult education budget was slashed, the council adopted a policy of allocating work on a 'best fit' basis i.e. work would be allocated first to those who were under a contractual obligation to work before allocating work to the Claimants under their more flexible contracts.

The Employment Tribunal considered that this was not discrimination against part-time workers because the 'less favourable treatment' was not solely on grounds that they were part-timers. It had been caused by their contract terms and there were other part-timers, on different terms, who had not been treated in the same way.

The Tribunal based its decision on an EAT judgment Gibson v Scottish Ambulance Service where part-timers were treated differently in the allocation of standby work but the EAT accepted that that was not the only reason that they were so treated (they were treated differently by reason of geographical location as well) so their claim failed. The European Part-Time Workers Directive 98/23/EC uses the word ‘solely’ in its key clause 4 but the UK Regulations do not.

The EAT now says that this was wrong. The discrimination does not have to be solely on the ground of part-time status in order for a claim to succeed. Any other conclusion would undermine the very purpose of the Directive.

Points to note:

  • This decision suggests that the UKRegulations go further than the European Directive and means that there is a greater scope for claims by part-timers;

  • The EATalso confirms that the discriminatory ‘treatment’ can include contract terms so employers cannot avoid liability simply by drafting part-timers contracts differently from those of full-timers, as happened in this case;

  • Note however that in this case the employer did not run the argument that the discrimination could be 'justified on objective grounds' – a defence that is open to employers under the Directive and the Regulations. We can advise further on appropriate cases.

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