Working Time (Amendment) Regulations 2007: part-time worker case study

Leanne Cole of Osborne Clarke concludes a series of articles on the Working Time (Amendment) Regulations 2007 with a case study on implementing the Regulations for a part-time worker.

Jenny works a three-day week (Monday to Wednesday) for A Limited. She has heard that the statutory holiday entitlement is changing and that from 1 October 2007 the entitlement will increase from four weeks to 4.8 weeks and that a further increase will take place in April 2009 to 5.6 weeks.

Jenny is unsure what 4.8 weeks means and would like to know to how many days' holiday she will be entitled when the new Regulations come into force?

The Working Time Regulations 1998 express holiday entitlement as weeks. Currently, a worker is entitled to four weeks' statutory holiday, which can include bank and public holidays, of which there are eight in England and Wales. This means that employers are able to give workers who work five days a week 20 days' holiday per year, and require them to use eight of these to cover public and bank holidays. From 1 October 2007, a worker will be entitled to 4.8 weeks' statutory holiday, the increase being to reflect the eight public and bank holidays. The 4.8 weeks are equivalent to 4.8 times the normal working week, which will be 24 working days for a worker who works a five-day week. However, a part-time worker will receive a pro rata entitlement depending on the number of hours that he or she works. As Jenny works three days a week, she will therefore be entitled to 14.4 days’ statutory annual holiday from 1 October 2007 and 16.8 days from April 2009.

Jenny's employment contract states that she is entitled to 12 days' holiday per year plus any bank or public holidays that fall on her usual days of work. She wants to know if this is lawful.

A recent decision of the Court of Session in McMenemy v Capita Business Services Ltd [2007] IRLR 400 CS confirmed that a policy of paying only for statutory holidays that are normal working days is not necessarily unlawful. However, in this case, the employer's operational requirements meant that it operated seven days a week with both full-time and part-time workers working a variety of shift patterns that might or might not include a Monday. Both full-time and part-time employees were subject to the requirement for the bank holiday to fall on their normal days of work. The court determined that the employee had not been subject to discrimination on the basis of his part-time status; the less favourable treatment was due to the fact that he did not work on Mondays. However, this case does not mean that every policy based on normal days of work will necessarily be lawful, as a tribunal will consider the pro rata principle and whether or not the less favourable treatment was solely on the basis of the employee's part-time status. As A Limited operates seven days a week, the policy is not unlawful in Jenny's case. However, the position might be different if A Limited operated only Monday to Friday. Without definitive case law on this issue, the safest course of action for an employer in these circumstances would be to pro rate the eight bank holidays for all part-timers.

Will Jenny be entitled to any further statutory holiday leave under the new Regulations?

As Jenny works three days a week, she will be entitled to 14.4 days' statutory leave a year from 1 October 2007. This is regardless of whether or not she works on the days that public and bank holidays fall. However, A Limited can require Jenny to take her 14.4 days' holiday at certain times, such as on bank holidays.

Jenny currently receives 12 days' holiday per year plus any public and bank holidays that fall on her usual days of work. As she works Monday to Wednesday, Jenny would currently receive the majority of the bank and public holidays, as they fall on a Monday. Therefore, depending on how the public and bank holidays fall, she may currently receive more than 14.4 days' holiday per year and, if so, would not be entitled to receive any additional holiday under the Regulations.

Will A Limited have to round up Jenny’s holiday entitlement to the nearest whole day?

As Jenny works three days a week, she will be entitled to 14.4 days' leave a year. A Limited does not have to round her holiday entitlement up to 15 days, but it can do so if it wishes. However, it cannot round it down to 14 days. A Limited has a number of options available to it in relation to how it treats the part day. It could decide to: