Maternity and paternity issues for part time workers

Whilst flexible working used to have something of a stigma attached to it, nowadays it is recognised as an important way for the changing structures of family life to function to provide for the needs of the modern family. In the light of this, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the ‘Regulations’) provides protection for those who are able to work part time to help to accommodate a family situation.

The right to request flexible working

Although the Regulations don’t actually give a worker with a family the right to work part time, there is the right to ask to work flexibly (as set out in the Employment Rights Act 1996) and to receive an answer to this request in writing – as long as the person requesting the flexible working is caring for a child under 17, under 18 if disabled, or is a carer for an adult. When a request such as this is made to an employer it must be properly dealt with, as if not this could open up an employer to a claim in an Employment Tribunal by an employee.

Refusing a request

Where an employer has refused the request, but has given proper reasons for the refusal and the request has been correctly considered, the employee is not entitled to challenge the decision. It is important for employers to be aware of the risk of indirect sex discrimination in these circumstances, which may arise where a request for part time working or flexible working has been refused. This is because the majority of those workers in the position of carer tend to be women. The way that an employer can circumvent this is to prove that the refusal is objectively justifiable – that there is a clear business need for it.

Where an employee wants to make a claim for indirect sex discrimination or where a request to work flexibly has not been properly dealt with, this should be done within three months less one day of the failure by the employer to respond properly, or within three months less one day of the refusal.

The Regulations

The Regulations will apply to someone as soon as they begin to work part time and set out the basics for making sure that someone who is working on a part time basis is not treated any less favourably than another employee, simply because they are working part time – unless the treatment can be objectively justified by the employer as a legitimate way of achieving a business aim.

Being treated less favourably could be something such as a different working environment, or less favourable contractual terms (for example being paid less as a part time employee than those who are full time doing the same job, or receiving less favourable pension rights). The Regulations comparison is made between part time and full time workers.

A comparable full time worker under Regulation 2(4), is someone who – at the time of the unfavourable treatment against a part time worker – has the same type of contract to do broadly similar work (taking into account skills, qualification, experience etc) for the same employer, and who either works or is located at the same place as the part time worker; or if such an employee does not exist, a comparable full time worker will be someone who works elsewhere but who has the same type of contract to do broadly similar work (taking into account skills, qualification, experience etc) for the same employer.

A ‘pro-rata’ approach can be taken by an employer, which would see a part time worker receive a proportion of full time hours benefits. An employer can also require that a part time worker works a certain number of hours to receive an enhanced overtime rate – the same number as that required from a fulltime worker – and this will not fall foul of the Regulations.

There is also protection from victimisation in the event that an employee has made a complaint about his or her treatment on the basis of a part time working relationship – this will apply to anyone who comes within the definition of ‘worker,’ including those who are self employed.

A difference in treatment which can be objectively justified will not be unlawful.

Making a claim

A worker who wants to make a claim at an Employment Tribunal should do so within three months less one day of the treatment.