Focus on
Part-time Workers
The Scottish Court of Session has ruled that an employer, which operated a policy of not giving part-time workers days off in lieu for bank holidays falling on a Monday if they did not normally work on Monday, did not discriminate unlawfully contrary to the Part-Time Workers Regulations.
Regulation 5 of the Part-Time Workers Regulations provides that “a part-time worker has the right not to be treated… less favourably than the employer treats a comparable full-time worker” but this right applies only if two conditions are fulfilled: (i) the treatment is on the ground that the worker is a part-time worker and (ii) the treatment is not justified on objective grounds.
In Cheney -v- Capita Business Services Ltd, the Court of Session found that the policy of not giving part-timers days off in lieu for bank holidays falling on days which they did not normally work was not treatment on the grounds of part-time status, because there was evidence that a full-time worker who did not work Mondays would have been treated in the same way.
In coming to its decision, the Court of Session referred to drafting of the EC Framework Agreement which sets out the primary right for part-timers to be treated no less favourably than comparable full-timers. Additionally, both the French and German domestic legislations implementing the Framework Agreement were scrutinised. Applying the language of the Framework Agreement led the Scottish court to conclude that an employer will escape liability for discriminating against a part-time worker if it can be established that another reason played some part in the employer’s decision.
The Court of Session’s decision severely restricts the scope of the protection afforded to part-time workers under the Framework Agreement. Critics have also noted a fundamental issue with the Court’s decision: much discrimination against part-time workers takes place not because of the hours they work but because of factors associated with their part-time status, such as the increased cost of providing benefits. On the basis of the Court of Session’s interpretation, discrimination will not be found because the part-timer’s status is not the sole reason treating the part-timer less favourably.
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