The part-time workers regulations highlight apprentices are not employed on the same type of contract as non-apprentices, and workers are on a different type of contract than employees, so cannot be comparators for the purpose of raising a claim.
However, in the case of Roddis v Sheffield Hallam University, the Employment Appeal Tribunal found than an associate lecturer on a zero hours contract was employed on the same type of contract as a full-time permanent academic lecturer. It was understood that both employees were engaged under the same type of employment contract, with both having set notice periods and statutory protection from unfair dismissal.
The fact that one was full-time permanent and the other was zero-hours did not mean that they should be treated differently – this would go against the purpose of the part-time workers regulations.
How can organisations avoid part-time worker claims?
To avoid the risk of claims, organisations should pro-actively take steps to support their part-time workers and ensure they receive the same basic entitlements as comparable full-time colleagues. They should not select employees for contractual changes or make them redundant solely based on their working hours.
Where redundancies are needed, organisations should apply a fair selection criterion across all its affected employees, to objectively decide who should stay on and who should be made redundant.
Key elements to include in the criteria include: skills, qualifications and aptitude; standard of work and performance; attendance records; disciplinary records; and length of service. An in-depth consultation process further ensures employees are treated fairly and consistently.
In situations where TUPE rules apply to a change in employer, part-time staff should be afforded the same opportunities and protection. Organisations cannot refuse to transfer part-time workers if the work they do will remain available. Doing so will breach TUPE regulations and risk claims of automatically unfair dismissal.
Organisations should also remember that in situations where full-time workers become part-time workers (for example, after accepting a flexible working request or enforcing a reduction in hours), employees are entitled to the same terms and conditions as their former full-time contracts.
This means they should be given the same hourly rate, however, their monthly salary can be reduced on a pro-rata basis to reflect the work they do. All other contractual entitlements, such as annual leave, can be pro-rated in the same way. Essentially, the former contract serves as the full-time comparator when determining whether there is any less favourable treatment and will apply even when there is not a separate full-time comparator in post.
Ultimately, it is vital for employers to remember that workers can not be placed at a detriment due to their part-time status.
