This guide is intended to provide a brief introduction to equal treatment rights for part-time workers. It also contains information about other basic rights which part-time workers are entitled to in the workplace.
This information is for guidance only and should not be regarded as an authoritative statement of the law. It is always a good idea to seek advice from your union (or from an advice agency if not a union member) on your specific situation before taking any action.
Part time workers - rights to equal treatment
If you are working part-time then you have the right not to be treated less favourably than full-time colleagues doing the same or a similar job for your employer.
These rights are contained in Part-Time Workers (Prevention of Less Favourable Treatment) Regulations which were introduced in 2000 thanks to trade union campaigning in Europe.
Who has the right to equal treatment?
Rights to equal treatment will apply to you if you are a 'worker' or an 'employee', from the first day of your employment. The rights do not apply to individuals who are genuinely self-employed. (Please see the employment status section for more information about whether you are an employee or a worker).
It makes no difference if you are employed on a permanent contract or a fixed-term contract, you still have rights.
The rights also apply regardless of the number of hours you work. As long as there are workers doing a similar job for your employer, working longer hours than you and getting better treatment, then you will be covered by Regulations.
The right to equal treatment
As a part-time worker you have the right not to be treated less favourably than your full-time colleagues on all terms and conditions of employment. This includes:
Pay: You have the right to equal treatment in terms of all forms of pay, including expenses, bonuses and performance related pay other pay related benefits, including profit related pay schemes.
Overtime: As a part-time worker your employer can apply the same hours threshold to you as to a full time worker. So you may only be entitled to overtime pay once you have worked in excess of the normal hours of a full-time worker.
Holiday entitlement: You will be entitled to the same holidays as full-time workers, calculated on a pro-rata basis. Your employer cannot round down the number of days you are given as this would be less favourable treatment, but fractions of days may be given as hours.
For example, if a part time worker works 4 days per week and the full time comparator in the workplace is entitled to 7.1 weeks holiday per year, the part time worker will be entitled to 28.4 days (7.1 x 4) annual leave per year. The employer cannot round down the holiday entitlement to 28 days. The worker will be entitled to have full days holiday and then additional holiday in hours using the remaining annual leave entitlement.
Bank holidays and public holidays: If you work fixed days each week and your employer gives staff additional time off for bank holidays or public holidays, your employer should also provide you with additional time off even where normal working pattern does not always coincide with public holidays.
If your employer does not adopt such a practice, you might be placed at a disadvantage. For example, because most bank and public holidays fall on a Monday, those who do not work Mondays will be entitled to proportionately fewer days off. In such cases, your employer should provide you with additional days off calculated according to the number of hours you work.
The only situation where an employer may not be required to give you additional time off is where you work on shift patterns under which full time and part-time employees are equally likely to be scheduled to work on bank holidays.
Providing your employer provides you with adequate notice (see statutory holiday rights) they can require you to take this additional leave so it coincides with bank holidays.
Pensions: Part-time workers have the right to join any occupational pension scheme that is provided by the employer and which is open to comparable full-time workers, unless they can objectively justify not providing you with access. They cannot rely on cost alone as a reason for not opening an occupational scheme to part time workers. Any pension should be provided on a pro-rata basis reflecting the hours you work.
Sick leave and pay: You will entitled to the same sick leave and pay entitlements as full time staff. This includes both contractual and statutory sick leave and pay entitlements.
Family or carers' related pay and leave: Part-time workers are entitled to the same rights to maternity, paternity and adoption leave and pay and parental leave as full time staff. If your employer provides more than the statutory entitlements, as a part-time worker you must also receive these entitlements, calculated on a pro-rata basis, reflecting the hours you work.
Redundancy It is unlawful for the employer to treat you less favourably because you work part time when selecting people for redundancy. You are also entitled to equal treatment on redundancy pay which will usually be based either on your annual salary or wages.
Other workplace benefits You should not be excluded from workplace benefits if full time colleagues benefit from them. This includes for example, access to car parking, staff canteens, crèches, childcare provision, health care, travel loans, staff parties and staff discounts. Where it is not possible for employers to provide you with a benefit on a pro-rata basis, e.g. subsidised membership of a gym, your employer should provide you with the benefit on the same basis as the full time worker.
Training: Training should be scheduled as far as possible to allow part-time workers to participate. Whilst on a training course (including a union course) you should be paid the same as a full-time colleague on the course if the length of the course means that it goes on past normal working hours.
Calculating your entitlements on a pro-rata basis
As a part-time worker you will be entitled to contractual and statutory rights and workplace benefits on a pro-rata basis reflecting the hours that you work. For example, if you work 24 hours a week and similar full-time workers doing the same job work 40 hours per week, you have a right to 24/40th or 3/5ths of the full-time worker's entitlement. For example, your weekly pay should be 3/5th of the full time worker.
Making a comparison
To be able to claim rights under the Regulations, you will have to show that you have been treated less favourably than a full-time worker, who:
- works for the same employer and
- works in the same workplace, (or if there are no full-time workers in your workplace a full time workers in another workplace owned by your employer) and
- works on the same type of contract, (i.e. if you work on a zero hours contract you can only make comparisons with a full time worker on a zero hours contract and if you are a part-time 'employee' you can only make comparisons with full time 'employees') and
- is doing the same or similar work.
Example 1: if you work part-time in a shop where every shop assistant is part-time and you find out that the full-time shop assistants in the shop next door are better paid, this is no help as they are not working for the same employer.
Example2: nor would it help to find out that a full-time manager is getting better sick pay because they are not doing the same or similar work as you and so are not considered a suitable comparator.
Example 3: someone employed full-time by your employer at another location is carrying out the same job as you and is getting a better hourly pay rate. You may well be able to rely on the Regulations in these circumstances.
If you previously worked full-time for the same employer but you have received worse terms and conditions since making the transition to part-time work you can make a comparison with your previous pay and conditions to demonstrate you are being treated less favourably. This rule may be particularly helpful if you request to work part-time, for example, after maternity leave.
Employer defences for unequal treatment
Employers can defend a claim that you have been discriminated against as a part-time worker if they can demonstrate that the less favourable treatment is objectively justified. This means:
- The treatment is to achieve a legitimate objective, such as a genuine business or operational need
- The treatment is necessary to achieve that objective and is
- A proportionate way to achieve that objective
Employers must provide you with equal treatment with full time colleagues on each separate employment condition or workplace benefit. They cannot argue that because your overall terms and conditions are no less favourable than a full time employee's terms and conditions, you have not been discriminated against. For example, an employer cannot argue that because they provide part-time workers who work 2 days a week with access to childcare facilities on a full-time basis that it is lawful for them to refuse part-time workers no sick pay when full-time workers receive sick pay.
Using discrimination law
Part-time workers who have been discriminated against at work may also have rights under equality law. For example, if part time workers receive less favourable treatment than a full-time employee of the opposite sex, they may have a claim for direct sex discrimination or equal pay. As the majority of part-time workers are women, discrimination against part time workers can also amount to indirect sex discrimination.
There may be some advantages for part time workers when relying on discrimination law. Sex discrimination law is broader in scope than the Part-Time Worker Regulations. For example employers may be guilty of sex discrimination if they do not consider applicants who wish to job share or work part-time. The Part-Time Worker Regulations do not apply to job applicants. Under sex discrimination law, employers have no defence where there is evidence of direct discrimination. Part-time workers may also be able to use a hypothetical comparator and compensation awards are likely to be higher for successful discrimination claims.
For more information on equality law go to the Equality and Human Rights Commission website.
Flexible Working: the right to request a transfer from full-time to part-time work
The Part-time Worker Regulations 2000 do not include a right to work part-time.
But if you are an employee you may have the right to have a request to work flexibly, considered by your employer. This includes requests to change your hours (including a reduction from full-time to part-time hours), the times when you work and where the work is carried out.
Who can apply for flexible working?
In order to make a request for flexible working, you must:
- be an employee but not an agency worker or member of the armed forces;
- have worked for your employer continuously for 26 weeks before making the request;
- not have made a request within the last 12 months.
And you must either:
- Have, or expect to have, responsibility for a child aged under 17
- Have, or expect to have responsibility for a disabled child under 18 for whom Disability Living Allowance is paid; or
- Be, or expect to be, the carer for an adult who is your spouse, partner, civil partner or someone who is not related to you but lives at the same address.
To qualify you must have parental responsibility for the child. This includes being a biological parent, legal guardian, adoptive or foster parent or a spouse of these. This includes same sex parents as long as they have parental responsibility for the child.
To qualify as a carer you must care for or expect to care for an adult who:
- you are married to, or who is your partner or civil partner; or
- is your relative; or
- falls into neither category but lives at the same address as you.
Making an application
Your application must:
- Be made in writing and state that it is being made under the statutory right to apply for flexible working
- Confirm your relationship to the child or adult in need of care
- Set out the proposed change to your working pattern and explain what effect you think this will have on your employer's business or organisation and how this might be dealt with
- Specify a start date for the proposed change giving the employer reasonable time to consider the proposal and implement it. This may take 12 to 14 weeks.
- State if you have made a previous application under the right and if so when
- Be dated
How should your employer respond to your application?
On receipt of an application, your employer should:
- Arrange to meet you within 28 days of receiving your application to discuss the request. This meeting is not required if your employer agrees to the terms of your application and informs you within 28 of receiving it.
- Allow you to be accompanied at this meeting by either a union representative who is employed by your employer or another colleague.
- Notify you in writing of their decision within 14 days of the meeting. This notification with either:
- accept your request and set out the start date and any other action, or
- confirm a compromise agreed with you at the meeting
- reject your request, set out clear business reasons for the rejection and inform you of your right to appeal.
- Arrange a meeting to hear your appeal within 14 days. You have a right to be accompanied at the appeal meeting.
- Notify you of their decision on the appeal within 14 days of the appeal meeting. This notification with either:
- Uphold your appeal, and set out the agreed change to working conditions and a start date
- Dismiss your appeal, state the grounds for the decision.
You can agree an extension to any of these time limits with your employer. Your employer must record this agreement in writing and provide you with a written copy.
On what grounds can your employer refuse your application?
It is important to note that the right is to request flexible working arrangements; it is not a right to work flexibly. Employers can refuse applications but only for the following reasons:
- burden of additional costs,
- inability to reorganise work amongst existing staff or to recruit additional staff
- detrimental impact on the ability to meet customer demand,
- detrimental impact on qualify or performance
- insufficient work during the periods the employee proposes to work
- planned structural changes
The procedure above sets out the legal minimum requirements which employers must follow when considering applications for flexible working. You should check your contract or staff handbook as your employer may have agreed a scheme with a union or have their own workplace procedure in place which is better than the statutory minimum.
It is important to be aware that where a woman's request to change her working hours is unjustifiably refused by the employer, she may be able to claim indirect sex discrimination under the Equality Act. The same applies where a woman's request to work flexibly on her return from maternity leave is refused by her employer. In either case, the employer's refusal will only amount to discrimination if it cannot be justified, i.e. shown to be a proportionate way of achieving a legitimate aim. Discrimination law can be complex and you should seek advice from your union rep or, if you are not a union member, from the ACAS helpline before taking any steps.
What can I do if I am not getting my equal treatment rights?
If you are not receiving your equal treatment rights you can make a complaint to an Employment Tribunal.
It is always a good idea to seek advice from your union rep or from the ACAS Helpline before taking steps to enforce your rights.
For more information please go to the section on enforcing your rights.
Basic rights at work for part time workers
As a part time worker you will have a range of other statutory rights in the workplace.
Which rights you qualify for will depend on your employment status, that is whether you are an 'employee', or a 'worker'. For more information go to the employment status section.
All part-time 'workers' have some basic rights at work. These include the right:
- To work in a safe and healthy working environment
- Not to be discriminated on grounds of sex, race, disability, sexual orientation, maternity, age, religion or belief
- To be paid at least the national minimum wage
- Not to have unfair deductions made from your pay
- To paid holidays, calculated on a pro-rata basis
- To be accompanied by a trade union representative or colleague at formal grievance and disciplinary hearings
- Not to be discriminated against because of your trade union membership or activities
- Not to be victimised for seeking to enforce your statutory rights
Some important employment rights are only available to those who are classed as 'employees'. These include:
- the right to claim unfair dismissal if you are sacked without notice or good cause. In most cases you will need to have worked continuously for your employer for at least one year in order to bring a claim of unfair dismissal. But some reasons for dismissal are deemed automatically unfair and in these cases (for example being sacked because you are pregnant or because you are a trade union member) you do not need a year's service to bring a claim. You are protected from day 1 of your employment
- the right to redundancy pay (if you have worked continuously for your employer for a continuous period of two years);
- the right to take maternity, paternity and parental leave;
- the right to paid time off for ante-natal care; and
- the right to a written statement of main terms and conditions of employment, including pay, hours, job description, notice period, and details of grievance procedures.
For more information on employment status follow this link: employment status
Issued: 26 July, 2011