02 November 2021

Part-time worker discrimination

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 does exactly what it says on the tin. They prevent an employer treating a part-time worker less favourably than their full-time colleagues on the grounds of their part-time status.

Less favourable treatment of a part-time worker can be justified if the treatment is a proportionate and necessary way to achieve a legitimate business aim. The Employment Appeal Tribunal has looked recently at a case where a part-time worker said he was being treated less favourably because he wasn’t given a paid 15-minute break when he worked a shorter shift than his full-time colleagues.

In Forth Valley Health Board v Campbell, the employee worked an average of 16 hours a week over a 6-week rota. He did a mixture of shorter and longer shifts. The employer paid employees for a 15-minute break if they worked a shift of 6 hours or more. The employee got a paid 15-minute break when he worked a 6-hour shift at the weekends but not when he worked a 4 hour shift mid-week. He said that this was less favourable treatment because his full-time colleagues got a paid break on every shift. The employment tribunal agreed, saying it was less favourable treatment for part-time workers who worked fewer hours.

The EAT disagreed. The tribunal’s ‘but for’ (the employee’s part-time status) test was wrong. The correct approach was to consider why the employee was treated less favourably in relation to paid breaks. On the facts, it wasn’t because of his part-time status, but because of the length of shift he was working during the week. That was evident because he got a paid break when he worked a longer shift at the weekends. If part-time workers worked longer shifts, they would receive the paid break.

This is a common-sense decision based on sound legal principles. Different treatment on its own is not enough. The important question in a part-time worker discrimination case is the reason for the treatment. Here, the reason for the lack of a paid break was the length of shift the employee was working, not the fact that he worked part-time. His part-time status was incidental and irrelevant.

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