Wake-up call – How rights differ for part-time workers

08 June 2012
Wake-up call – How rights differ for part-time workers

With more people working part time than ever, there's potential for confusion with regard to benefits among the workforce. James Hall explains how their rights differ from those of a full-time employee

The Problem
Recent reports have revealed that the number of people working part time because they are unable to find full-time work is at the highest since records began 20 years ago. But how do their rights differ from those of a full-time worker?

The Law
The term "atypical worker" can cover a very wide range of roles: basically anyone who does not fall into the typical pattern of being employed full-time by one employer.

There are numerous ways that this can play out in practice and many of these roles will be familiar in the hospitality industry, including, but not exclusively, agency workers; casual workers, including those on zero-hour contracts; fixed-term workers; consultants; apprentices; and any other part-time workers.

With so many different variables, it is difficult to cover all aspects in a short article. However, a few of the key protections are outlined below.

Many atypical workers will be classified as part-time workers. The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 define a part-time worker as someone who is paid by reference to the time they work and is not by custom a full-time worker. In this light, many people who are paid an hourly rate will count as part time, provided that they work fewer hours than anyone who is considered full time.

The main purpose of these regulations is to establish a right for part-time workers to not be treated less favourably than a comparable full-time worker. This means that part-time workers cannot be treated less favourably because of their part-time status, rather than meaning that they must be treated the same under any circumstances.

The Agency Workers Regulations 2010, will also apply to many atypical workers. These mean that from the start of their assignment, agency workers should have the same access to communal facilities and information about job vacancies as equivalent full-time staff and, after a 12-week qualifying period, will be entitled to the same "basic working conditions" and should be paid at the same rate as equivalent full-time staff.

In addition to the above, standard rights under the Employment Rights Act 1996 (relating to issues including statutory minimum rates and protection from unfair dismissal) may also apply, depending on the status of the individual as an "employee" or "worker". Importantly, unfair dismissal rights do not apply to workers, regardless of their length of service.

The Equality Act 2010 (relating most notably to discrimination by reason of sex, race, religion or belief, sexuality, gender reassignment, disability or age) will apply to all workers from the moment they come into contact with the employer, regardless of their status or length of employment.

Expert Advice
A key factor for any atypical worker is whether they are an "employee" or a "worker". If an atypical worker can show that they are an employee, they will benefit from increased rights and protections.

A "worker" is someone who has a contract meaning they will personally perform services for another party and there is a mutuality of obligation between them for one to provide the work for the other to undertake it.

This relationship can be extended to one of an "employee". While there is not a definitive list, indicators of employment status include:

â- Exclusivity, where the individual can work for other organisations only with the permission of the employer.
â- Employment is not of a fixed length and is not related to the performance of a specific task: for example, staff who help with weekend conferences may be employees, where staff employed for a specific conference may be only workers.
â- Tax and national insurance contributions are paid by the employer and not the individual.
â- Pay is a difficult one for atypical workers because they often work shifts, but the stronger the pattern of regular fixed payments, the better.
â- The degree of integration into the business, for example, by way of wearing a uniform, or providing services that are also provided by full-time employees.
â- The employer provides the individual with the tools needed to perform their tasks.

While it can be difficult to apply the above list with certainty, it is clear that for all atypical employees, the closer the list resembles their situation and the closer their work resembles that of a full-time permanent member of staff, the more likely they are to be an employee. If they are an employee, then they will have the same basic rights as all other employees, regardless of how many hours they work.

A disproportionate number of atypical workers will have one of the protected characteristics afforded protection against discrimination. Even if they are not treated differently because of their working pattern, ensure that they are not treated differently, inadvertently or otherwise, as a result of one of these characteristics.

James Hall is a solicitor at Charles Russell LLPjames.hall@charlesrussell.co.uk

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