Written by Brabners LLP
As many employees of umbrella companies do not have fixed hours, they could potentially be classified as part-time workers depending on the hours they work and could consequently obtain the protection from discrimination that other part-time workers are afforded with.
The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the ‘Regulations’) provide a level of protection to part-time workers to ensure that they are not treated any less favourably than their full-time counterparts.
Most businesses are aware of discrimination legislation and the protected characteristics under the Equality Act 2010, however many organisations are not aware that part-time workers are also protected from certain forms of discrimination under the Regulations, despite part-time working not being categorised as a protected characteristic. Even with the best intentions, many employers could be unaware that they are falling foul of the Regulations in treating part-time workers less favourably than full time workers, opening them up to a whole host of other consequences.
Unpaid breaks for part-time workers – is this discrimination?
Earlier this month, the Employment Appeal Tribunal (EAT) heard an appeal on a case brought by an employee arguing that his refusal to be allowed a paid break during his part-time shifts constituted less favourable treatment under the Regulations and was therefore unlawful. In this claim of Forth Valley Health Board v Campbell, the Claimant submitted that he did not receive a 15-minute paid break during certain shorter shifts he worked for the Respondent and that this was less favourable treatment in comparison to a full-time worker who would receive a 15-minute paid break.
In their original decision, the Employment Tribunal (ET) agreed with the Respondent and held that the Claimant’s lack of entitlement to a paid break was, in effect, less favourable treatment on the grounds that he was a part-time worker. The Claimant was awarded compensation to remedy this.
The Respondent then made an appeal in the EAT and EAT upheld this appeal. The EAT ruled that the Claimant’s lack of entitlement to a 15-minute paid break was not due to the fact he was a part-time worker, it was due to the fact that he worked shorter shifts than the full-time workers and therefore did not qualify for a break under the Working Time Regulations. The EAT found that when the part-time worker completed longer shifts (as he sometimes did during the weekends), he too was be entitled to a paid break like the full-time workers who were entitled to a 15-minute paid break for every 6-hour shift they completed. The EAT held that there was no causal link between shift length and part-time status, as part-time workers would receive the same breaks if they worked longer shifts.
Avoiding less favourable treatment of part-time workers
Despite the case of Forth Valley Health Board v Campbell ruling that unpaid breaks for shorter shifts do not constitute less favourable treatment for part-time workers, umbrella companies need to be aware that there are many other ways that part-time workers could be treated less favourably than full-time workers and that they could be held liable if the employee is subject to discrimination or less favourable treatment in any way.
Although many umbrella companies will not have day-to-day control over their employees and may therefore feel as though there is not much they can do to protect their workers from less favourable treatment, they should be aware that there are certain aspects of a part-time workers contract that are protected under the Regulations which are controlled by contracts provided by the umbrella company, in addition to the protection provided by the AWR, if applicable:
1. Hourly rate: part-time workers should receive the same hourly rate as full-time workers in comparable positions. A lower hourly rate should only be given if it can be justified on objective grounds, e.g. performance related pay.
2. Overtime pay: part-time workers should receive the same overtime rate for work completed over and above their normal hours as full-time workers receive for their overtime.
3. Training: part-time workers should be provided with the same training opportunities as full-time workers should they be relevant, and they should not be excluded on the grounds that they work part-time.
4. Holidays and Family Leave: part-time workers are entitled to the same annual leave and maternity/paternity leave as full-time workers and based on the same calculations, albeit on a pro-rata basis.
5. Benefits: part-time workers are entitled to the same benefits (pensions, sick pay, bonus and shift allowance) as full-time workers on a pro-rata basis.
6. Written reasons: part-time workers are entitled under the Regulation to request a written reason from their employer as to why they are being treated less favourably should they request this. Employers are required to provide this information within 21 days of any request from an employee.
Less favourable treatment of part-time workers under the Regulations can open up businesses to the likelihood of successful claims in the Employment Tribunal where large sums of compensation can be awarded to remedy the situation. Furthermore, organisations should be aware that any Employment Tribunal ruling is made public, and as a result of this any other businesses or individuals will be able to see that your organisation has been held to account for less favourable treatment and this could have an impact on the financials and reputation of the company. The comparator for the purposes of any such claim would be another employee engaged by the umbrella but there are situations were an employee may argue that the comparator is an employee of the client.
If Umbrella companies have any uncertainties about their obligations in relation to part-time workers and whether certain actions could constitute less favourable treatment, they should seek legal advice in order to avoid any risk of Employment Tribunal claims.
This bulletin is for general guidance purposes only and should not be used for any other purpose.. Brabners is a Limited Liability Partnership.