Greater Manchester Pay and Employment Rights Advice Service Factsheet

• statutory rights - which are the rights given by the law;
• contractual rights - which are those in the contract between worker and employer.

People who work part-time have exactly the same statutory rights as people who work full-time. Part-time workers who are employees have the same rights as full-time employees to payslips, redundancy pay, claiming unfair dismissal, etc. In addition, all workers (even those who are not employees) are entitled to the national minimum wage and paid holidays. These rights apply regardless of how few or how many hours are worked. If you want to know more about any of these statutory rights, contact us.

Since 2000 part-time workers have been able to claim the same contractual rights as “comparable” full-time workers. This means in general that within the same company part-time workers should get the same pay, holidays, sick pay, pensions, bonuses, etc. as full-time workers, although these will be pro rata. So a worker who worked half the hours of a full-time worker would be entitled to half the bonus, etc. Further rights were introduced in 2002.

Checking whether you are protected

The Part-Time Workers` Regulations cover all workers including many agency workers not classed as employees, and homeworkers who have been told that they are “self-employed”. However, the regulations are complicated. They do not simply say that part-time workers should get the same rights as full-time workers. Instead, in order to decide whether a part-time worker can claim the same rights as a full-time worker, the following questions have to be asked:

• Do the part-time and full-time workers meet the definition of full and part-time workers?
• Do they have the same kind of contract?
• Are they doing comparable work?

Definition of full-time and part-time workers

The law’s definition of full and part-time workers is complex. The law says that:

• a full-time worker is someone paid wholly or in part by reference to the time s/he works and identifiable by contract or by custom and practice as a full-time worker;
• a part-time worker is someone paid wholly or in part by reference to the time s/he works and identifiable by contract or by custom and practice as a part-time worker.

The same type of contract

A part-time worker can only be compared to a full-time worker who is employed by the same employer on the same type of contract. The following are not employed under the same type of contract and therefore cannot be compared with each other:

• employees on apprenticeships;
• employees employed on a contract that is not a contract of apprenticeship;
• workers who are not employees;
• any other worker on a different type of contract.

There can be no comparison between workers and employees, but there can be comparisons made between part-time workers on fixed term contracts and full-time permanent workers, or between part-time workers on permanent contracts and full-time workers on fixed term contracts.

Comparable work

In order to make comparisons the part-time and full-time workers must be doing the same or “broadly similar” work. Account should be taken of whether they have a similar level of qualification, skills and experience, where this is relevant. This means, for example, that a part-time cleaner in a school would not be able to claim equal rights with a full-time teacher. The full-time worker must work or be based at the same workplace as the part-time worker. If there is no comparable full-time worker at that workplace then the comparison can be made with a full-time worker for the same employer who is based at a different workplace.

Rights under the Regulations

A part-time worker has the right not to be treated by her/his employer less favourably than a comparable full-time worker. This means:

• receiving the same contractual terms (on a pro rata basis);
• not being subject to detriment by any act or failure to act of the employer.

This right applies only:

• if the unfavourable treatment is on the grounds that the worker is part-time; and
• the treatment is not justified on objective grounds.

The right applies to any treatment of a part-time worker by an employer. However, the government has given the following examples of when part-time workers must be treated equally:

• In re-organising workloads part-time workers should not be treated less favourably than full-time workers unless this treatment can be objectively justified.
• Previous or current part-time status should not of itself be a barrier to promotion to a post, whether the post is full or part-time.
• Part-time workers should receive the same hourly rate of pay as comparable full-time workers.
• Part-time workers should get the same hourly rate of overtime pay as comparable full-time workers, once they have worked more than the normal full-time hours.
• Part-time workers should be able to participate in profit sharing or share option schemes available for full-time staff, unless there are objective grounds for excluding them; and they should receive pro rata benefits.
• Part-time workers should not be treated less favourably than full-time workers in terms of calculating the rate of sick or maternity pay, the length of service required for such payment, and the length of time the payment is received.
• Employers should not discriminate between full and part-time workers over access to pension schemes, unless different treatment is justified on objective grounds.
• Employers should not exclude part-time staff from training simply because they work part-time.
• The criteria used to select jobs for redundancy should be objectively justified, and part-time workers must not be treated less favourably than comparable full-time workers.
• Benefits such as subsidised mortgages and staff discounts should be applied to part-time workers, unless an exception is justified on objective grounds.
• The holiday entitlement of part-time workers should be pro rata to that of full-time workers, and this applies to bank holidays as well as annual leave.
• Contractual maternity and paternity leave should be available to part-time as well as full-time workers, as should career breaks.

Changing from full-time to part-time work

Workers who change from full-time to part-time work (for the same employer) do not have to find a comparable full-time worker, but can claim the same contractual rights as they had when they were full-time. These rights apply in the following circumstances:

• Moving directly from full-time to part-time work: in this case a worker is full-time and then continues to work for the same employer for a lower number of hours, either because the contract has been changed, or because the previous full-time contract has ended and a new part-time contract has begun. The right applies even if the full and part-time contracts are not the “same type of contract”.
• Returning to work part-time after an absence: in this case a worker is full-time before the period of absence and returns to work after an absence to the same or similar job at a lower number of hours. The period of absence must be less than twelve months from the day on which it started. The right applies even if the full and part-time contracts are not the “same type of contract”, and even if the absence followed the ending of the full-time contract. The worker should also receive the benefit of any changes in terms and conditions which have been made during the absence, so long as those changes would have applied to the worker if s/he had not been absent and had continued to work full-time.

The right to make comparisons with their previous full-time work does not stop the part-time worker choosing to make comparisons with another comparable full-time worker.

Changes to contracts

An employer has no legal right to cut an employee’s contracted hours without the agreement of the employee. If an employer does this without agreement, an employee could make a complaint to the Employment Tribunal about it. First of all an employee should send the employer a grievance letter; see our factsheet on Grievances for guidance on how to do this.

Termination of contracts

Similarly, if an employer terminates a contract there must be a good reason for doing so (even if it is a fixed term contract) and an employee may be able to claim unfair dismissal in this situation. An employer cannot therefore tell an employee that her/his full-time contract is to be ended and a new part-time contract offered without running the risk of a claim for unfair dismissal at a Tribunal. If an employer has good reasons for wanting to cut an employee’s hours (eg to avoid having to offer redundancy) this should be negotiated with the employee.  Contact us for advice on these issues.

Unfair dismissal

If an employer dismisses an employee for raising or supporting issues in relation to the unfavourable treatment of part-time workers that will be an unfair dismissal. An employee has the right not to be victimised or suffer any detriment for raising these issues.  The right to claim unfair dismissal in these circumstances applies to all employees from the first day of employment. Workers cannot claim unfair dismissal but can make a complaint about victimisation or detriment to Employment Tribunal.

What you can do if you are being treated unfavourably

A part-time worker who believes s/he has been unfavourably treated should ask the employer for a written statement of the reasons for the treatment. The employer must provide this statement within twenty-one days of the request. This statement, or the failure to provide it can be used as evidence at an Employment Tribunal if the complaint is taken there. If you believe you have been unfavourably treated you should first of all send your employer a grievance letter; see our factsheet on Grievances for guidance on how to do this.

Other issues for part-time workers

If you earn less than the National Insurance threshold, currently £97 per week (to 5^th April 2011), you will not be entitled to any contributory benefits such as Statutory Sick Pay if your doctor signs you off sick from work, or Job Seeker’s Allowance if you become unemployed, or a state pension when you retire. The only exception is that women earning £30 or more a week but less than the NI threshold are able to claim Maternity Allowance.

If you need more information about pay and employment rights, contact

Greater Manchester Pay and Employment Rights Advice Service

(  0161 839 3888) phone and answer machine

4^th Floor, Swan Buildings, 20 Swan Street, Manchester M4 5JW

We provide telephone advice only and cannot see people face to face

Or visit our website on: www.gmemploymentrights.org.uk

Trade Unions

Trade Unions help workers to get better pay and work conditions

For further information contact us or

North West TUC,

Tel: 0151 236 5432

Greater Manchester Pay and Employment Rights Advice Service is an independent research and information body funded by all local authorities in Greater Manchester under the AGMA Grants Scheme.

August 2010