23rd July 2018
With an increasing number of businesses using part-time workers to deliver their services, it is important for employers to understand the approach that should be taken to ensure that the rules governing this type of employment are complied with.
Sarah Everton, employment law solicitor at Myers & Co Solicitors in Stoke on Trent explains the key provisions you need to be aware of.
There is no legal definition of a part-time worker, but in broad terms anyone who works less than the usual hours worked by a full-time employee, based on the employer’s workplace customs and practices, will be classed as a part-timer.
Part-time workers are protected by the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which provide a basic right for those who work part-time not to be treated any less favourably than comparable full-time workers or to suffer a detriment as a result of their status, except where this can be objectively justified.
This means that, compared to a full-time comparator, any part-timer you employ is generally entitled to receive the same:
You must ensure that the pay and benefits given to a part-time worker are no less favourable than those given to someone doing the same job on a full-time basis, although you are entitled to apportion the pay and benefits provided pro-rata.
Some benefits cannot be addressed easily on a pro-rata basis, for example the provision of a company car or access to healthcare. One possibility with company cars might be to allow part-time workers to select from a cheaper range of cars than full-time workers are permitted to choose from or to pay them a cash equivalent in lieu. With healthcare benefits, you could adopt a scheme whereby you pay a proportion of the annual benefit equivalent to the number of days worked. Alternatively, depending on your size and resources, you might decide that it is easier to just allow full access to such benefits to all workers regardless of the hours they work.
Calculating the annual leave entitlement of a part-time worker can be a challenge, particularly when it comes to factoring in bank holiday allowance. The statutory minimum holiday allowance for a full-time worker is 28 days (5.6 weeks), which may be inclusive of bank holidays if you wish.
A week’s leave is taken to involve a worker being away from work for a week. So, a week’s leave for a full-time worker will be 5 days and for a part-time worker, who works 2 days a week, it will be 2 days.
Part-time workers and employees are entitled to 5.6 weeks of their normal working week. To do the calculation you generally multiply your normal working week by the amount of days that they work.
For example, for an employee who works 2 days a week out of a normal 5 day working week, annual leave entitlement would be 11.2 days (2 x 5.6). For someone who works 2.5 days a week, the entitlement would be 14 days (2.5 x 5.6).
If your full-time workers and employees are entitled to take the bank and public holidays, then you must give part-timers the same rights. Entitlement will still be calculated pro-rata according to the hours worked. You calculate the pro-rated allowance using the following formula:
Number of days worked by part-timer, divided by the 5 days worked by full-time workers, multiplied by 8 bank holidays = entitlement.
For example, for an employee who works 3 days a week, the calculation would be 3 divided by 5, multiplied by 8, which equals 4.8 days.
You cannot round down holiday to the nearest half day as that would be unlawful; you can either work it out in hours and minutes or round it up to the nearest day if you are prepared to be more generous.
For part-timers who work different hours from one week to another or who are employed on shift patters the calculations are more complex. Sarah can advise you on the approach to be taken.
If you have part-time staff working overtime, you need to include a clause in their contract stating that overtime rates will only be payable once a set number of hours a week have been completed; any hours under this will be paid at their usual hourly rate.
If you have part-time employees who also work for someone else, you need to take care to ensure they are not breaching the Working Time Regulations 1998. To do this, you could include an ‘outside business interests’ clause in their contract to restrict their ability to take on other jobs or activities, both during and outside of their normal working hours with you. This makes it clear that your prior written permission is required if they wish to take on a second job and that such permission will not be given if it would breach the working time rules.
If a redundancy situation arises, you must not decide to terminate the contracts of part-time employees first. Instead, you should score part-time and full-time employees on the same basis, applying no penalties for being a part-timer, and base your decision on that.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.