Part-Time Workers Regulations amended in workers' favour

New Regulations coming into effect at the beginning of this month remove an anomaly that meant part-timers could not compare their treatment with that of workers on fixed-term contracts.

The new Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002, SI 2002 No.2035, ("the 2002 Regulations") amend the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000 No.1551, ("the 2000 Regulations"), thus implementing two changes proposed earlier this year by the government.

The 2002 Regulations came into force on 1 October 2002.

Comparators

It is unlawful for employers to treat part-timers less favourably than comparable full-timers. Under the 2000 Regulations, part-timers must compare themselves to full-timers employed under "the same type of contract". Regulation 2(3) of the 2000 Regulations sets out categories of workers who are deemed to be employed under different types of contract and so cannot be used as comparators. These include workers on fixed-term contracts. Regulation 2(a) of the 2002 Regulations provides for the substitution of a new reg. 2(3) in the 2000 Regulations that removes all reference to fixed-term workers from the exclusion. Those working under a fixed-term contract and those working under a permanent contract may therefore be employed under "the same type of contract" for the purposes of the 2002 Regulations.

The government believes that to do otherwise, and require a part-time worker on a fixed-term contract to compare himself or herself only with a full-time worker on a fixed-term contract, is likely to amount to less favourable treatment of the part-time worker on the grounds that he or she is on a fixed-term contract. This would be contrary to the Fixed-Term Work Directive (No.1999/70/EC), which is implemented by the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002 No.2034 ("the Fixed-Term Regulations"), also due to come into force on 1 October 2002.

Since both the 2000 Regulations and the 2002 Regulations (unlike the Fixed-Term Regulations) apply to employees and to workers without employee status, both categories of workers are able to take advantage of the new possibilities of comparison.

However, an employer will still be able to justify less favourable treatment of a part-time worker on objective grounds under reg. 5(2)(b) of the 2000 Regulations. The fact that a particular worker is contracted to work under a fixed-term contract, as opposed to a permanent contract, may, depending on the facts of the case, be a relevant factor in determining whether less favourable treatment is justified.

Pension loss remedies

Regulation 8(8) of the 2000 Regulations limits the remedies which a tribunal may make, following a finding of less favourable treatment under an occupational pension scheme, to a period two years prior to the presentation of the complaint. Less favourable treatment relates both to the terms of access to the scheme, and to treatment under the rules of the scheme. Regulation 2(b) of the 2002 Regulations now repeals reg. 8(8) of the 2000 Regulations.

The effect is to ensure compliance with the judgment in Preston v Wolverhampton Healthcare Trust (No 2)¹, in which the House of Lords held that complaints of less favourable treatment in respect of access to a pension scheme could not be limited to a period of two years before the date on which the complaint was presented. The amendment goes further and also removes the two-year limitation in the case of less favourable treatment in relation to treatment under the rules of the scheme.