The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
A detailed examination of the Regulations that purport to implement the Part-time Work Directive in Great Britain.
"The Government has implemented the Directive in the UK by way of regulations and guidance in order to take account of the specific nature of the British labour market. This will ensure that it is effective whilst not imposing unnecessary burdens on business."
(from the introduction to Part-time work: the law and best practice - a detailed guide for employers and part-timers)
Regulations that came into force on 1 July 2000 ("the Regulations")1 and guidance (see the box on p.3) together purport to implement in Great Britain the EC Part-time Work Directive (No.97/81) ("the Directive")2 as extended to the United Kingdom by Council Directive 98/23/EC. The purpose of the Directive is to implement a framework agreement on part-time work, made on 6 June 1997 between the European social partners3 ("the Agreement"), which is annexed to the Directive. According to Ministers4, the basic aim of the Regulations is to make it unlawful for employers to treat part-time workers less favourably than comparable full-time workers, in respect of all their terms and conditions of employment5, unless such treatment can be objectively justified.
The Government was required, and promised6, to implement the Directive in the UK by 7 April 2000. It also promised7 to publish draft implementing Regulations in the first half of 1999, and to allow two or three months for consultation. In the event, a consultation paper containing the draft Regulations was published on 17 January 2000 and the period of public consultation ended on 27 February 2000. A revised draft, laid before Parliament on 3 May (see Part-Time Workers Regulations extended to protect broad category of "workers"), was approved by the House of Lords on 22 May and by MPs on 24 May 2000; and the Regulations were made, in exercise of a power conferred by s.19 of the Employment Relations Act 1999 ("the 1999 Act"), on 8 June to come into force on 1 July 2000.
Existing protection
The vast majority of part-time workers are women. Before 1 July 2000, they had to try to prove indirect sex discrimination, contrary to the Sex Discrimination Act 1975 ("the SDA") or the Equal Pay Act 1970 ("the EqPA") and Article 141 of the EC Treaty, to gain equal treatment. While they no longer have to do that, there are circumstances in which they would be well advised to do so in addition to, or even instead of, attempting to enforce their right to equal treatment under the Regulations. The Secretary of State for Trade and Industry, Stephen Byers, said8 the Regulations would "simplify the legal position for part-timers", but the TUC's view9 that they will "make legal cases more complex and expensive" seems much closer to the mark.
In a recently published report10, a select committee of the House of Commons expressed concern that, if the Directive was transposed into domestic law in its basic form, it would be no more effective, and in some areas less effective, than the SDA and the EqPA. In response to that11, the Government said it did not wish to undermine existing protection, and would be drawing on experience of the SDA and the EqPA to overcome any of their limitations. However, as we will show, the Regulations are out of line with the SDA and the EqPA in a number of respects.
COVERAGE AND DEFINITIONS
The Agreement applies to part-time workers who have "an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each member state" (clause 1.1).
The draft Regulations that were published for public consultation covered only "employees", a proposal that could, if unchanged, have left the Government open to a legal challenge. But the Government took into account the strong views expressed in response to the consultation paper, and extended the coverage of the Regulations to the broader definition of "worker"12. The Regulations therefore cover not only employees and apprentices but also many agency workers and homeworkers.
The Agreement allows member states, for "objective reasons" and after consulting unions and employers, to exclude "wholly or partly" from its terms part-time workers who work on a "casual basis" (clause 1.2). Although the Regulations do not expressly exclude such workers to any extent, they are nevertheless excluded because comparisons under the Regulations can be made only between part- and full-time workers employed under the same type of contract (see pp.3-4).
The Agreement also allows national laws and/or collective agreements to make access by part-time workers to particular conditions of employment subject to a "period of service, time worked or earnings qualification", where that is objectively justified and appropriate (clause 4.4). But the Regulations cover workers regardless of their length of service, hours of work or level of income. The Agreement does not allow any exemption for small businesses, and nor do the Regulations provide for one.
"Full-" and "part-time worker"
Clause 3.1 of the Agreement defines a "part-time worker" comparatively as a worker whose "normal hours of work", calculated on a weekly basis or on average over a period of employment of up to one year, are less than the "normal hours of work" of a "comparable full-time worker" (see below).
By contrast, for the purposes of the Regulations, a worker is a "full-time worker" if "he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker" (reg. 2(1)); and a worker who is so paid but is not so identifiable as a full-time worker is a "part-time worker" (reg. 2(2)).
The Regulations therefore exclude workers who are not paid to any extent by reference to the time they work, such as pieceworkers with no set hours. Further, whether a worker is a full-time or a part-time worker depends upon the "custom and practice" of the particular employer for whom he or she is working in relation to workers employed under the "same type of contract". In those two respects, the Regulations arguably do not properly implement the Directive.
"Comparable full-time worker"
The Agreement defines a "comparable full-time worker" as a "full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills". Where there is no comparable full-time worker in the same establishment, the Agreement provides that the comparison shall be made "by reference to the applicable collective agreement" or, if there is no such agreement, "in accordance with national law, collective agreements or practice" (clause 3.2).
For the purposes of the Regulations, a full-time worker is a "comparable full-time worker" in relation to a part-time worker if, "at the time when the treatment that is alleged to be less favourable to the part-time worker takes place - (a) both workers are - (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience13; and (b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements" (reg. 2(4)). It is immaterial whether or not both workers are of the same sex.
Arguably, the Regulations do not properly implement the Directive in failing to provide that, where there is no comparable full-time worker at the same establishment as a part-time worker, the comparison is to be made "in accordance with national law" (that is, with a comparable full-time worker at a different establishment) only if there is no "applicable" collective agreement; where there is such an agreement, the comparison must be made by reference to it. In this regard, the Secretary of State was, and remains, empowered to make Regulations that "provide for the provisions of specified agreements to have effect in place of provisions of the Regulations to such extent and in such circumstances as may be specified" (s.19(3)(g) of the 1999 Act).
The Regulations also exclude part-time workers in segregated occupations, who are employed by an employer that employs no full-time worker who satisfies the requirements of reg. 2(4)(a) and (b). Moreover, the Regulations do not allow comparisons between part- and full-time workers who are not employed contemporaneously by the same employer14, or who are employed by different employers, under different types of contracts (see below) and/or on work of equal value. However, such comparisons are also not permitted by the Agreement.
By contrast, a complainant of indirect sex discrimination contrary to the EqPA can compare her contractual terms and conditions of employment with that of a worker of the opposite sex employed by an "associated employer" (within the meaning of s.1(6)(c) of the EqPA), under a different type of contract (see below) and/or engaged in work that has been rated as equivalent (within the meaning of s.1(5)) or is otherwise of equal value; and Article 141 of the EC Treaty permits a comparison between the "pay" of a woman and that of a man who did equal work for, but is no longer employed by, the same employer (Macarthys Ltd v Smith15), or who is employed "in the same establishment or service".
A complainant of indirect sex discrimination contrary to the SDA can compare her treatment with that of a hypothetical man, provided that the relevant circumstances in her case are the same, or not materially different, in his (ss.1(1)(b) and 5(3) of the SDA). The Government believes that for a hypothetical comparator to have been introduced into the Regulations, for which there were strong calls, would have been "disproportionate to the problem and unnecessarily onerous on business"16. It also believes that the concept of such a comparator is "inappropriate in the context of the Directive". The Regulations, it says, are "straightforward to enforce and based on a common-sense pro rata treatment of part-timers in comparison with real-life full-timers"17.
Different types of contract
For the purposes of the definitions in the Regulations of "part-time worker", "full-time worker" and "comparable full-time worker", the following shall be regarded as being employed under different types of contract:
Thus, for example, part-time workers employed under contracts for services ("workers") cannot compare their treatment with full-time workers employed under contracts of employment ("employees"). Nor, for the time being, can a part-time worker employed under a fixed-term contract compare his or her treatment with that of a full-time worker employed under a permanent contract. However, the framework agreement annexed to the EC Fixed-term Work Directive (No.99/70), which member states are required to implement by 28 June 2001, provides that "fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless justified on objective grounds".
Special classes of person
The Regulations apply to those in Crown employment18 (reg. 12(1)), members of the armed forces and reservists not undertaking training (reg. 13(1) and (2)), relevant members of the House of Lords and House of Commons staff19 (regs. 14(1) and 15(1)) and police officers20, but not to daily fee-paid judicial officeholders (reg. 17).
LESS FAVOURABLE TREATMENT
A part-time worker has the right not to be treated by his or her employer less favourably than the employer treats a "comparable full-time worker" (see above) - (a) as regards the terms of his or her contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of the employer (reg. 5(1)). But that right applies only if the less favourable treatment "is on the ground that the worker is a part-time worker", and it "is not justified on objective grounds" (reg. 5(2)).
In determining whether or not a part-time worker has been treated less favourably than a comparable full-time worker, the "pro rata principle" shall be applied unless it is "inappropriate"21 (reg. 5(3)). That principle means that, where a comparable full-time worker receives, or is entitled to receive, pay or any other benefit, a part-time worker is to receive, or be entitled to receive, not less than the proportion of that pay or other benefit that the number of his or her "weekly hours"22 bears to the number of "weekly hours"22 of the comparable full-time worker (reg. 1(2)).
Contractual terms
The terms of a part-time worker's contract as regards which he or she is entitled in principle not to be treated less favourably than a comparable full-time worker include his or her:
However, a part-time worker is not entitled to be paid the same rate for overtime as a comparable full-time worker until he or she has worked the number of hours that the comparable full-time worker is normally required to work (reg.5(4)). This is in line with the European Court of Justice's ruling in Stadt Lengerich v Helmig23.
Other detriments
A part-time worker has a prima facie right not to be treated less favourably than a comparable full-time worker by being subjected to such other detriments as selection for redundancy and denial of opportunities for promotion or training. For example, it is unlawful to select part-time workers first for redundancy, or to require them to have worked longer than full-time workers to obtain promotion, unless that can be objectively justified.
The Regulations do not cover external recruitment. However, employers that are recruiting and do not consider applications from people who want to work part time or jobshare may be vulnerable to complaints of indirect sex discrimination contrary to the SDA. As "best practice", the Government recommends that: employers should review periodically whether the posts they are offering could also be performed by part-time workers; and, when approached by an applicant who wishes to work part time, employers should give consideration as to whether part-time work arrangements could fulfil the requirements of the post.
Causation
In determining whether or not a worker's less favourable treatment was on the ground that he or she was a part-time worker, there is no reason to think that employment tribunals will not apply the same "but for" test as case law24 requires them to apply in determining whether or not less favourable treatment was on grounds of sex or marriage, or on racial grounds, in any circumstances relevant for the purposes of the SDA or the Race Relations Act 1976 ("the RRA").
However, interpreting the Regulations in the light of the wording of the Directive, it will arguably not be enough that the worker's part-time status was the principal or an important cause of the less favourable treatment, or that it had a significant influence on the outcome (Nagarajan v London Regional Transport25). Clause 4.1 of the Agreement provides that, in respect of employment conditions, "part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds" (emphasis added).
Objective justification
Notes accompanying the Regulations ("the Notes") state: "Less favourable treatment will only be justified on objective grounds if it can be shown [by the employer] that the less favourable treatment: (1) is to achieve a legitimate objective, for example, a genuine business objective; (2) is necessary to achieve that objective; and (3) is an appropriate way to achieve the objective." Broadly the same test is used for justifying indirect sex discrimination contrary to Article 141 of the EC Treaty (see Bilka-Kaufhaus GmbH v Weber von Hartz26).
When (what is now) s.19 of the 1999 Act was considered by a standing committee of MPs, the Minister for Small Firms, Trade and Industry, Michael Wills, said: "... employers would have difficulty in justifying discriminatory treatment solely on cost grounds. Under European law, the costs of non-discrimination cannot of themselves justify discriminatory treatment. In practice, part-timers are unlikely to cause long-term costs to the business but will in fact contribute to its competitiveness."27
The Notes give a performance-related pay scheme as an example where a lower hourly rate for part-timers than for comparable full-timers might be objectively justified. If workers are shown to have a different level of performance, measured by a fair and consistent appraisal system, this could justifiably result in different rates of pay.
Compliance guidance produced by the Department of Trade and Industry ("the DTI") states that, where a benefit such as health insurance or a company car cannot be applied pro rata, this is not of itself an objective justification for withholding it from part-time workers. Objective grounds justifying such less favourable treatment might include the disproportionate cost to the organisation of providing the benefit, or the imperative to meet a real need of the organisation. The exclusion of part-timers from a share option scheme may be objectively justified where the value of the share options is so small that their potential benefit to the part-timers is less than the likely cost of realising them.
OTHER RIGHTS
In addition to the right in principle of part-time workers not to be treated less favourably than comparable full-time workers, the Regulations give a right to workers who become part time or, having been full time, return part time after absence, to be treated no less favourably than they were before going part time. These rights also apply only if the less favourable treatment is on the ground that the worker works part time and it is not objectively justified.
Workers becoming part time
A full-time worker who, following a termination or variation of his or her contract, continues to work under a new or varied contract (whether of the same type or not) for fewer "weekly hours"22, is entitled not to be treated less favourably than he or she was treated, as regards the terms of his or her contract or by being subjected to any other detriment, before the termination or variation (reg. 3).
The Regulations do not give a full-time worker the right to become a part-time worker. However, if an employer allows women to reduce their hours, it must treat requests from men on the same basis or be liable for complaints of direct sex discrimination.
Workers returning part time after absence
A full-time worker who returns to work for the same employer after a period of absence is entitled not to be treated less favourably than he or she was treated, as regards the terms of his or her contract or by being subjected to any other detriment, before the absence, provided that he or she returns:
The Regulations do not give workers returning from maternity leave or after other periods of absence (such as long-term illness or a career break) the right to return to work part time. However, a refusal to allow a woman returning from maternity leave to transfer from full-time to part-time work can constitute indirect sex discrimination contrary to the SDA.
Written statement of reasons
Workers who consider that their employer may have treated them less favourably under the Regulations may ask the employer for "a written statement giving particulars of the reasons for the treatment". Provided that the request is in writing, the worker is entitled28 to be provided with such a statement within 21 days of the request (reg. 6(1)). If there is a case for objective justification, that should be put down29.
A written statement is admissible as evidence in any proceedings under the Regulations (reg. 6(2)), just as a questionnaire under the SDA or the RRA is so admissible. If it appears to the tribunal in any such proceedings that the employer deliberately, and without reasonable excuse, omitted to provide a written statement, or that the statement it provided is evasive or equivocal, the tribunal may draw any inference that it considers just and equitable, including an inference that the employer has infringed the right in question (reg. 6(3)30). But the worker is not entitled to any compensation or other remedy in that event.
If the worker considers that the employer may also have discriminated against her contrary to the EqPA or the SDA, she should also serve on the employer the forms prescribed by the Sex Discrimination (Questions and Replies) Order 1975. That will enable her to decide whether or not to proceed with a complaint of indirect sex discrimination.
Unfair dismissal
The dismissal, or selection for redundancy31, of an employee is, regardless of his or her length of service or age32, automatically unfair if the reason or principal reason for it is that he or she has:
or that the employer believes or suspects that the employee has done or intends to do any of those things33 (reg. 7(1), (3) and (4)).
Victimisation
Similarly, a worker has the right not to be subjected to any other detriment by any act, or any deliberate failure to act, by his or her employer done on any of the grounds specified above (reg. 7(2)).
Section 18 of the Employment Tribunals Act 1996, providing for conciliation by the Advisory, Conciliation and Arbitration Service, applies to employment tribunal proceedings, and claims which could be the subject of such proceedings, arising out of a contravention, or alleged contravention, of reg. 7(2)34.
ENFORCEMENT
A worker may complain to an employment tribunal of less favourable treatment or victimisation under the Regulations (reg. 8(1)). The limitation period is three months from either the date of the relevant treatment or detriment or the last in a series of similar acts or deliberate failures to act comprising that treatment or detriment (reg. 8(2)35). However, a tribunal may consider a complaint that is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so (reg. 8(3)36).
For the purposes of calculating the date of the less favourable treatment or detriment under reg. 8(2) - (a) where a term in a contract is less favourable, that treatment shall be treated, subject to para. (b), as taking place on each day of the period during which the term is less favourable; (b) where the complainant relies on reg. 3 or 4, the less favourable treatment shall be treated as occurring on, and only on, in the case of reg. 3, the first day on which the complainant worked under the new or varied contract and, in the case of reg.4, the day on which the complainant returned; and (c) a deliberate failure to act contrary to reg. 5 or 7(2) shall be treated as done when it was decided on37 (reg. 8(4)).
Burden of proof
Where a worker presents a complaint under reg. 8, it is for the employer to identify the ground for the less favourable treatment or detriment (reg. 8(6)38).
Restrictions on contracting out
Section 203 of the Employment Rights Act 1996 applies in relation to the Regulations as if they were contained in that Act (reg. 9).
Vicarious liability
A person's employer will be deemed also to have done anything done by that person "in the course of his [or her] employment", whether or not it was done with the employer's knowledge and approval (reg. 11(1)). Similarly, anything done by a person as agent for, and with the authority of, an employer will be treated as also done by the employer. However, in proceedings under the Regulations against an employer in respect of an act alleged to have been done by a worker of that employer, it will be a defence for the employer to prove that it "took such steps as were reasonably practicable to prevent the worker from - (a) doing that act; or (b) doing, in the course of his [or her] employment, acts of that description" (reg. 11(3)).39
Criminal liability?
The Secretary of State is empowered to make Regulations that create criminal offences, in relation to specified acts or omissions by (among others) employers, which are triable summarily only and punishable by a fine not exceeding level 5 on the standard scale, currently £5,000 (s.19(3) and (5) of the 1999 Act). The Regulations do not create any such offence, and the Government has made it clear that, if it uses the power, it envisages a very limited use. The power will be used "sparingly and with restraint", if at all40.
REMEDIES
An employment tribunal that finds a complaint presented to it under the Regulations to be well-founded is required, as it considers just and equitable, to:
(a)make a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates;
(b)order the employer to pay compensation to the complainant;
(c)recommend that the employer take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates41 (reg. 8(7)).
If the employer fails, without reasonable justification, to comply with such a recommendation, the tribunal may, if it thinks it just and equitable to do so - (a) increase the amount of compensation required to be paid to the complainant in respect of the complaint, where an order was made under reg. 8(7)(b); or (b) make such an order (reg. 8(14)42).
Limitation on backdating
Where the tribunal decides that the complainant has been treated less favourably in respect of the terms on which he or she is afforded access to an occupational pension scheme, or his or her treatment under the rules of such a scheme, the tribunal cannot backdate any of the remedies specified above earlier than two years before the date on which the complaint was presented (reg. 8(8)).
Commending the Regulations to the House of Lords, the Minister for Science, Lord Sainsbury of Turville, said43: "Clearly, this particular point will not impact for two years and we shall review the situation during that period. If it is incompatible with European law, we shall examine that and amend it accordingly." (In Preston and others v Wolverhampton Healthcare NHS Trust and others and Fletcher and others v Midland Bank plc44, the ECJ ruled that a similar provision was precluded by Community law.)
Compensation
The amount of any compensation awarded by an employment tribunal shall be such as the tribunal considers just and equitable in all the circumstances having regard to - (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the infringement having regard, in a case of less favourable treatment, to the pro rata principle except where it is inappropriate to do so (reg. 8(9)45).
The loss shall be taken to include - (a) any expenses reasonably incurred by the complainant in consequence of the infringement, and (b) loss of any benefit which he or she might reasonably be expected to have had but for the infringement (reg. 8(10)46). However, compensation in respect of less favourable treatment shall not include compensation for injury to feelings47 (reg. 8(11)).
The Regulations require the tribunal: in ascertaining the loss, to apply the same rule concerning the duty of a person to mitigate his or her loss as applies to common law damages (reg. 8(12)48); and, where it finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, to reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding (reg. 8(13)49). It is hard to see in what circumstances such a deduction for contributory fault could be made.
OPPORTUNITIES FOR PART-TIME WORK
Best-practice guidance produced by the DTI, rather than the Regulations, purports to implement what a Minister has described as "the more exhortatory of the Directive's provisions"50, namely clause 5 of the Agreement (see the document extract above). The explanatory notes to the 1999 Act state that clause 5 "does not impose any legal obligations on member states or employers, but provides (amongst other things) for the encouragement of more and better quality part-time jobs by setting out principles which employers should seek to adopt".
As "best practice", the Government recommends that:
As to clause 5.2 of the Agreement, the best-practice guidance simply restates existing law: "In some cases, the operational needs of an organisation may make it necessary to change the number of hours that workers work. This is a contractual matter, and must be agreed with the workers concerned. Full consideration should be given to the circumstances of individual workers, and changes should be made with as much notice as possible. In some cases, insisting that a part-timer works full time can constitute indirect sex discrimination."
Incomplete transposition?
We have already identified a number of respects in which the Regulations arguably do not properly implement the Directive. It is also arguable that:
The Agreement does not provide a method of enforcing any such duty, but it does state that the prevention and settlement of disputes and grievances arising from its application shall be dealt with in accordance with national law, collective agreements and practice (clause 6.5).
The Government set great store by introducing the Regulations with "a light touch", and "avoiding unnecessary burdens on business"8. Again, however, the Government and other emanations of the state are vulnerable to legal challenges, either by way of judicial review or by part-time workers employed by emanations of the state seeking to enforce provisions of the Directive in employment tribunals against their employers. In the event of such a challenge, questions on the interpretation of the Directive could be referred to the European Court of Justice for a preliminary ruling.
References
1 SI 2000/1551, available from the Stationery Office, price £3.
2 OJ L 14, 20.1.98, p.9.
3 ETUC, UNICE and CEEP.
4 Hansard (HC) Third Standing Committee on Delegated Legislation, 18.5.00, col. 3 and Hansard (HL), 22.5.00, cols. 557-558.
5 Employees qualify for statutory employment rights regardless of the number of hours they work.
6 Fairness at work, Cm 3968, para. 5.5.
7 Hansard (HC) Standing Committee E, 2.3.99, col.227.
8 DTI news release P/2000/305, 3.5.00.
9 TUC press release, 28.2.00.
10 Second Report from the Education and Employment Committee, Session 1998-99, Part-time Working, HC 346-I.
11 Government's Response to the Second Report from the Education and Employment Committee, Session 1998-99, HC 609.
12 The definition of "worker" in reg. 1(2) is practically the same as those in s.230(3) of the Employment Rights Act 1996 ("the ERA"), reg. 2(1) of the Working Time Regulations 1998 and s.54(3) of the National Minimum Wage Act 1998.
13 Under the EqPA, a woman is to be regarded as employed on "like work" with a man if her work and his "is of the same or a broadly similar nature" (s.1(4)). Their dissimilar qualifications, skills or experience is a potential defence to her claim for equal pay (s.1(3)).
14 The Regulations do, however, allow part-timers to compare themselves with their previous full-time contract after a switch in their working hours, or on returning part time after a period of absence such as maternity leave (see pp.5-6).
15 [1980] IRLR 210.
16 Hansard (HC) Third Standing Committee on Delegated Legislation, 18.5.00, col. 4.
17 Government's response to the Third Report from the Education and Employment Committee, session 1999-2000, HC 522.
18 Within the meaning of reg. 12(2), which mirrors s.191(3) of the ERA.
19 Within the meaning of regs. 14(2) and 15(2), which are almost identical to ss.194(6) and 195(5) respectively of the ERA.
20 Within the meaning of reg. 16, which mirrors reg. 41(1) and (3) of the Working Time Regulations 1998.
21 Similarly, clause 4.2 of the Agreement provides: "Where appropriate, the principle of pro rata temporis shall apply."
22 "Weekly hours" means the number of hours a worker is required to work under his or her contract in a week in which he or she has no absences from work and does not work any overtime or, where the number of such hours varies according to a cycle, the average number of such hours (reg. 1(3)).
23 [1995] IRLR 216.
24 See R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] IRLR 173 and James v Eastleigh Borough Council [1990] IRLR 288.
25 [1999] IRLR 572.
26 [1986] IRLR 317.
27 Hansard (HC) Standing Committee E, 2.3.99, col.202.
28 The right does not apply where the treatment in question consists of the dismissal of an employee, and the employee is entitled to a written statement of reasons for his or her dismissal under s.92 of the ERA (reg. 6(4)).
29 Hansard (HL), 22.5.00, col. 562.
30 This provision is practically the same as s.74(2)(b) of the SDA, s.65(2)(b) of the Race Relations Act 1976 ("the RRA") and s.56(3)(b) of the Disability Discrimination Act 1995 ("the DDA").
31 Section 105(7E) of the ERA, inserted by reg. 10 of, and para. 2(1) of the Schedule to, the Regulations.
32 Sections 108(3)(i) and 109(2)(i) of the ERA, inserted by reg. 10 of, and para. 2(2) and (3) of the Schedule to, the Regulations.
33 These reasons are similar to the "protected acts" in s.4 of the SDA, s.2 of the RRA and s.55 of the DDA.
34 Section 18(1)(h) of the ETA, inserted by reg. 10 of, and para. 1(a) of the Schedule to, the Regulations.
35 This provision is practically the same as s.48(3)(a) of the ERA.
36 This provision mirrors para. 3(2) of Schedule 3 to the DDA, and is almost identical to s.76(5) of the SDA and s.68(6) of the RRA.
37 As to which, see reg. 8(5), the wording of which is identical to the second half of s.48(4) of the ERA.
38 Section 48(2) of the ERA puts the onus on the employer to show the ground for any detriment under Part V of that Act but, under the SDA and the RRA, it is for the complainant to show that less favourable treatment was on grounds of sex or marriage or on racial grounds.
39 These provisions are practically the same as those of s.41 of the SDA, s.32 of the RRA and s.58 of the DDA.
40 Hansard (HL), 16.6.99, col. 382.
41 These remedies are identical to those available to a successful complainant of unlawful sex, race or disability discrimination in the employment field: see s.65(1) of the Sex Discrimination Act 1975, s.56(1) of the Race Relations Act 1976 and s.8(2) of the Disability Discrimination Act 1995.
42 This provision is in the same terms as s.65(3) of the SDA, s.56(4) of the RRA and s.8(5) of the DDA.
43 Hansard (HL), 22.5.00, col. 563.
44 [2000] IRLR 506.
45 This provision is practically the same as s.49(2) of the ERA.
46 This provision is practically the same as s.49(3) of the ERA.
47 By contrast, compensation in respect of unlawful sex, race or disability discrimination in the employment field may include compensation for injury to feelings whether or not it includes compensation under any other head: see s.66(4) of the SDA, s.57(4) of the RRA and s.8(4) of the DDA.
48 This provision is identical to s.49(4) of the ERA.
49 This provision mirrors s.49(5) of the ERA.
50 Hansard (HC) Standing Committee E, 2.3.99, col.231.
Guidance
Non-exhaustive notes accompanying the Regulations "cover the main changes [to the pre-1 July legal position] brought in by the Government's proposals on part-timers". Fuller guidance is contained in a guide produced by the Department of Trade and Industry ("the DTI") in discussion with "a working group including a wide range of bodies representing employers and employees" ("the Guide")51. This "explains how the Regulations work for employers and part-timers, what questions they need to consider and what action they should take". In addition to setting out the legal requirements ("compliance guidance"), the Guide also offers suggestions for best practice in this area ("best-practice guidance").
The Guide says that it "gives only general guidance and should not be regarded as a complete or authoritative statement of the law; determining the law is a matter for the tribunals and the courts". For more specific advice on how the Regulations will apply in specific cases, employers and part-timers are recommended to seek legal advice.
The Guidance does not therefore have the same status as Codes of Practice that the Secretary of State is empowered by s.20 of the Employment Relations Act 1999 ("the 1999 Act") to issue and revise. They are admissible in evidence in proceedings before an employment tribunal and, like the guidance issued under s.3 of the Disability Discrimination Act 1995, are required to be taken into account by an employment tribunal in any case in which it appears to the tribunal to be relevant (s.20(4) of the 1999 Act).
The Government had plans to produce a Code of Practice but abandoned them. When (what is now) s.20 of the 1999 Act was considered by a standing committee of MPs, the Minister for Small Firms, Trade and Industry, Michael Wills, said52: "A Code of Practice will enable us to fulfil our obligations under the Directive without placing unnecessary restrictions on employers ... It will also clarify employers' responsibilities under the Regulations and give recommended methods of meeting the more exhortatory of the Directive's provisions. It will not have to restrict itself to the Directive though, and it will be able to give guidance on problems that might arise, which are not covered in the Directive."
When the draft Regulations were considered by another standing committee of MPs, the Minister for Competitiveness, Alan Johnson, said53: "We are not including a Code of Practice in the Regulations, despite being urged to do so from many quarters, precisely because we do not want them to become a field day for lawyers ... We felt that what was needed was clear guidance and best-practice guidance, which we have produced with the assistance of the CBI, TUC and others." Similarly, the Government's response to a recent report from a House of Commons select committee says54: "The Government wishes to promote the advantages of part-time work in the most effective way. We believe this is best achieved by issuing, in conjunction with the social partners, a plain English guide to best practice for the benefit of employers and part-timers."
51 "Part-time work: the law and best practice - a detailed guide for employers and part-timers", available on the internet at: www.dti.gov.uk/er/pt-detail.htm
52 Hansard (HC) Standing Committee E, 2.3.99, col. 231.
53 Hansard (HC) Third Standing Committee on Delegated Legislation, 18.5.00, col. 19.
54 Government's Response to the Third Report from the Education and Employment Committee, Session 1999-2000, HC 522.
Interpreting the Regulations
The Regulations draw on precedents under existing legislation relating to unlawful discrimination and employment rights. Provisions of the Regulations that are practically the same as (if not identical to) provisions of the Sex Discrimination 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, or of the Employment Rights Act 1996, should be interpreted in the same way.
Further, employment tribunals and appellate courts are required to interpret the Regulations in the light of the wording and purpose of the Directive (see Marleasing SA v La Comercial Internacionale de Alimentacion SA55). The purpose of the Directive is to implement the framework agreement annexed to it, and clause 1 of that agreement states that its purpose is twofold:
"(a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work;" and
"(b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers."
55 [1990] ECR I-4135.
Framework agreement on part-time work
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General considerations
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5. Whereas the parties to this agreement attach importance to measures which would facilitate access to part-time work for men and women in order to prepare for retirement, reconcile professional and family life, and take up education and training opportunities to improve their skills and career opportunities for the mutual benefit of employers and workers and in a manner which would assist the development of enterprises.
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Clause 5: Opportunities for part-time work
1. In the context of clause 1 of this Agreement [see the box on p.5] and of the principle of non-discrimination between part-time and full-time workers:
(a)member states, following consultations with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them;
(b)the social partners, acting within their sphere of competence and through the procedures set out in collective agreements, should identify and review obstacles which may limit opportunities for part-time work and, where appropriate, eliminate them.
2. A worker's refusal to transfer from full-time to part-time work or vice versa should not in itself constitute a valid reason for termination of employment, without prejudice to termination in accordance with national law, collective agreements and practice, for other reasons such as may arise from the operational requirements of the establishment concerned.
3. As far as possible, employers should give consideration to:
(a)requests by workers to transfer from full-time to part-time work that becomes available in the establishment;
(b)requests by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise;
(c)the provision of timely information on the availability of part-time and full-time positions in the establishment in order to facilitate transfers from full time to part time or vice versa;
(d)measures to facilitate access to part-time work at all levels of the enterprise, including skilled and managerial positions, and where appropriate, to facilitate access by part-time workers to vocational training to enhance career opportunities and occupational mobility;
(e)the provision of appropriate information to existing bodies representing workers about part-time working in the enterprise.
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