The new regulations
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR 2000) provide a series of new rights. Under these regulations, which will come into force on 1 July, part-time workers will have the right not to be treated less favourably than comparable full-time workers in connection with contract terms, or by being subjected to any other detrimental treatment.
The right will only apply if the treatment is because the worker works part-time and if it is not justified on objective grounds. However, in the detail of the regulations, there are many traps for the unwary. Legal Week will look at the framework of the PTWR 2000 and the issues that need to be dealt with by employers.

What pay and benefits are covered?
The regulations apply to contractual sick pay, holidays, career breaks, parental leave, maternity pay and maternity leave, which must all be allowed on a pro rata basis.
Part-timers must also not be treated less favourably in connection with the service required to qualify for any benefits or the extent of any entitlement.
Part-time employees will be entitled to equal access to pension schemes. Benefits under the scheme must be on a pro rata basis.
Part-timers should not be excluded from training simply because they work part-time.

Which workers are covered?
The regulations are based on a comparison between full- and part-time workers who are hired by the same employer. A worker will be treated as full-time if they are paid wholly or partly by reference to the time they work. Custom, practice and any relevant contract term will also be considered.
A part-time worker is paid wholly or partly by reference to the time they work, but they are not identified as full-time if custom, practice and any relevant contract term says so.
A comparable full-time worker is one who is engaged in the same or similar work, who has a similar level of qualifications and experience, and works at the same establishment as the part-time worker. If there is no full-time worker at the organisation who satisfies these conditions, then full-time workers at different establishments can be considered.

What is 'less favourable treatment'?
Where a comparable full-time worker receives (or is entitled to receive) pay or other benefits, a part-time worker must receive the same pay or benefits as the full-time worker, but on a pro rata basis. Weekly hours are those (or the average of those) hours the part-time worker is required to work under his contract of employment in a week when he is not absent and does no overtime.
It is not considered to be 'less favourable treatment' if a part-time worker is paid less for working overtime than a comparable full-time worker if the total hours worked by the part-time worker, including overtime, in the relevant period does not exceed the number of hours the comparable full-time worker is required to work under his contract in the same period (disregarding any absences and overtime). So a part-time worker will not be seen to be receiving less favourable treatment if paid at the standard rate despite working what is overtime for him, but where the total hours he has worked means his week is no longer than the recognised full-time one for the other workers (ignoring any absences and overtime).
It will only be possible to pay part-timers a lower hourly rate where this is justified on objective grounds, such as under a performance-related pay scheme.

Written statement of reasons
If a worker believes he has been treated less favourably in relation to the PTWR 2000, he will be able to request a written statement from his employer giving reasons for the treatment. The employer must provide a written statement within 14 days of any request. Such statements will be admissible in any proceedings under the regulations.
If an employer deliberately or without reasonable excuse does not provide a written statement or if the statement is evasive or ambiguous, then an employment tribunal may infer that there has been a breach of the regulations.

Unfair dismissal and detriment
A worker will have the right not to be sub-
jected to any detriment by any act or any deliberate failure to act by their employer on the grounds that:

(1)they brought proceedings under the PTWR
2000;
(2)they requested a written statement giving
reasons relating to their treatment;
(3)they gave evidence or information in
connection with any proceedings under
the PTWR 2000;
(4)they otherwise did anything under the
PTWR 2000 relating to their employer or
any other person;
(5)they alleged their employer had infringed
the PTWR 2000;
(6)they refused or proposed to refuse to forgo
any rights under the PTWR 2000; and
(7) the employer believed or suspected that the
worker had done or intended to do any of
the above.

It will be deemed to be automatic unfair dismissal where an employee is dismissed and the reason or principal reason is one of the grounds in (1)-(7) above.
It will also be automatic unfair dismissal if an employee is selected for redundancy and the reason or principal reason they were selected was one of the grounds given above where other employees in similar circumstances have not been selected.
No qualifying period of employment is required before a claim can be brought for unfair dismissal and there is no upper age limit on bringing a claim.
A claim cannot be brought for unfair dismissal or detriment where the reason is that the employee alleged they had infringed the PTWR 2000 or if the allegation is false and not made in good faith.
A claim for unfair dismissal is brought in the normal way.
A claim for detriment may be brought in an employment tribunal. A three-month time limit (six months in the case of the armed forces) will apply, although this may be extended where a tribunal considers it fair to do so. The onus is on the employer to identify the ground for the less favourable treatment or detriment.
Compensation cannot include an award for any injury to feelings. The duty to mitigate loss will apply and any award can be reduced for contributory fault.
An employer will be deemed to be liable for the acts of their employees whether or not the employer knew or approved of them. However, it is a defence to any alleged acts of another employee if the employer can prove he took reasonably practicable steps to prevent those acts taking place.
Anything that is done for the purpose of safeguarding national security will not be treated as unlawful under the regulations.

Contracting out
It will not be possible to contract out of the provisions of the PTWR 2000. However, this prohibition will not apply to agreements reached through the services of a conciliation officer or compromise agreements where such agreements are implemented to refrain from or continue proceedings under the regulations.

Initial steps
Employers should amend their handbooks to include a section on the rights of part-timers under the PTWR 2000 and the consequences of breaching the regulations. A definition of what constitutes full-time is also needed.
Disciplinary procedures will need amending to make it a disciplinary offence to discriminate against part-timers.
Training will need to include the proper treatment of part-timers. The Government has issued 'compliance guidance' that is designed to assist employers in avoiding discrimination against part-time workers. It encourages employers to look seriously at requests to change to part-time working. Procedures should be established to facilitate this. Training must also stress the need to deal with requests for written statements of reasons in accordance with the time limits.
The draft regulations do not include all the provisions contained in the Part-time Work Directive. Parts of the directive omitted from the regulations include provisions that:

(a) an employee's refusal to transfer from full-time to part-time work or vice versa should not in itself constitute a valid reason for dismissal;
(b) as far as possible employers should give consideration to:
(i) requests to transfer from full-time to
part-time work that is available and vice
versa, and to increase the working time of part-timers when the opportunity arises;
(ii) the provision of timely information on
the availability of full-time or part-time
positions to facilitate transfers and the
provision of information about part-time
work to employee representatives;
(iii) measures to facilitate access to
training for part-timers to enhance their
career opportunities and mobility.

However, it is possible that the omitted provisions will be included in the expected Code of Practice.
Part-timers will only be allowed to compare their jobs with a full-timer doing the same
job for the same employer. This means that many part-timers doing jobs only done by
part-timers, such as some cleaning jobs, will not benefit.
Michael Ball is a partner and head of employment at Weightmans Solicitors.