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Amendments To The Part-Time Workers (Prevention Of Less Favourable Treatment) Regulations 2000

The Amendment Regulations came into force on 1 October 2002.

Comparators (Regulation 2)

The Regulations make it unlawful for employers to treat part-timers less favourably than comparable full-timers in their terms and conditions of employment, unless different treatment can be objectively justified.

Under the original regulations, part-timers had to compare themselves to full-timers employed under the same type of contract. This meant, for example, that a part-timer on a fixed-term contract had to compare him or herself with a full-timer on a fixed-term contract, and not with a full-timer on a permanent contract.

We believe that, in the light of the implementation in the UK of the Fixed Term Work Directive, this would amount to less favourable treatment of part-timers on the grounds that they are fixed term, and would therefore be contrary to the directive and needed to be changed.

The legal arguments are not quite the same for allowing part-timers on permanent contracts to compare themselves with full-timers on fixed- term contracts. However, we believed that it would be excessively complicated for all concerned to continue to prohibit this one form of comparison. In determining what comparisons are allowed under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations it is irrelevant whether either the individual fixed-term employees, or the permanent colleague to whom they are comparing themselves, are working on a part-time or full-time basis. It therefore seemed sensible that, from 1 October 2002, under the Part-Time Workers Regulations individual part-timers should be allowed to compare themselves to a full-time colleague irrespective of whether either party’s contract is permanent or fixed-term.

Since the Part-Time Workers Regulations (unlike the Fixed-Term Regulations) apply both to employees and to non-employee workers, the new possibilities of comparison under the Part-Time Regulations are available to both categories of individual.

(Of course, the fact that a comparison is permitted between two workers does not automatically mean that they must be treated the same, provided the employer can justify the difference in treatment on objective grounds. Thus, for the purposes of the Part-Time Workers Regulations, whether a particular worker is contracted to work for a time-limited or for an indefinite period may, depending on the facts of the case, be a relevant factor in determining whether less favourable treatment of a part-timer is acceptable).

Access to Occupational Pension Scheme (Regulation 8)

A further amendment to the Part-Time Workers Regulations ensures compliance with the judgment of the House of Lords in Preston v Wolverhampton Healthcare Trust. Under Regulation 8(8) of the Part-Time Workers Regulations, where an employment tribunal has upheld a complaint from a part-timer for equal access to an occupational pension scheme, the remedies which the tribunal orders may go back no further than two years. This time limit was originally inserted to ensure consistency with existing equal pay and pensions legislation, which provides that employer contributions to a pension scheme may not be backdated by more than two years.

On 6 February 2001 their Lordships ruled that the two-year time limit on backdating contravened European law on the equal treatment of men and women, and could no longer be maintained. As a consequence, the Part-Time Workers Regulations have been amended to remove the two-year time limit.

The amendment makes no difference to employers’ obligations under the Regulations, though it may affect the penalty they incur if they are found to be in breach of the Regulations by unlawfully discriminating against part-timers in respect of pensions provision.

Compliance Costs

There may be some compliance costs with regard to part-time workers who previously had no full-time comparators, but who, as a result of the changes to the regulations, are now able to make a comparison. These costs will arise only where employers treated part-time workers less favourably than their new full-time comparators because they worked part-time. The DTI survey on part-time and fixed term work suggests that the numbers affected are small and it has therefore not been possible to estimate the costs.

Employers who comply with the regulations face no additional costs as a result of the amendment in respect of pensions.