Select Committee on Education and Employment Second Report


PART-TIME WORKING

  THE EUROPEAN DIRECTIVE ON PART-TIME WORK

The Aims of the Directive

  119. The European Directive on Part-time Work implements the Framework Agreement concluded in June 1997 between the European Social Partners (UNICE, CEEP and ETUC). The aims of the framework Agreement were to:

120. 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 and, for the purposes of the Agreement, a part-time worker is one whose normal hours of work, calculated on a weekly basis or over a reference period of up to one year, are less than the normal hours of work of a comparable full-time worker (i.e. somebody employed in the same establishment, with the same type of employment contract or relationship and doing the same or similar work).[193] The Agreement has two main provisions: the "principle of non-discrimination" (Clause 4) and "opportunities for part-time work" (Clause 5).

121. Clause 4 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.

122. Clause 5 requires Member States and the social partners to identify and review legal and administrative obstacles to part-time work and, where appropriate, eliminate them; it provides for a worker's refusal to transfer between full- and part-time work, or vice versa, not to be valid grounds for dismissal; and it states that "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.".

123. The UK is required to implement the Directive by April 2000. In the UK, part-time and full-time workers enjoy the same employment rights. The Working Time regulations have also transformed annual leave from a contractual right to an employment right, to be enjoyed by both full-time and part-time employees. The Part-time Working legislation will have three main benefits:

    -  it will give part-time workers equal access to contractual benefits;

    -  it will provide alternative legislative protection for many women part-time workers who currently rely on sex discrimination legislation; and

    -  for the first time male part-time workers will be protected.

124. The Committee welcomes the Directive on Part-time Work, but we are aware that the manner in which the Directive is transposed into UK law will be crucial to its effectiveness.

Limitations of Existing Legislation

  125. The existing legislative protection for part-time workers is limited, in that it does not assist in areas where the workforce is predominantly female. Currently, part-time workers wishing to enforce their rights to equal treatment rely on the Sex Discrimination Act 1975 and the Equal pay Act 1970. The Sex Discrimination Act protects part-time workers from both direct and indirect discrimination. Direct discrimination occurs when a person of one sex is treated less favourably, on the grounds of sex, than a person of the other sex would be treated in the same circumstances. Indirect discrimination occurs when an unjustifiable requirement or condition, which applies to both men and women, results in one sex being disproportionately disadvantaged. The EOC pointed out that in practice most discrimination against part-time employees constitutes indirect discrimination against women on the grounds of sex.[194]

126. Under the Sex Discrimination Act it is necessary for an applicant bringing a case of indirect discrimination to prove that an employer applied to her a condition or requirement which applies equally to a man, and that the proportion of women who can comply with the condition or requirement is considerably smaller than the proportion of men who can comply. While the legislation has proved serviceable in many cases, Thompsons Solicitors have pointed out that there are "inherent difficulties in defining the relevant pool for comparison purposes and assessing the differential compliance rates required to prove disparate impact".[195]

127. The Equal Pay Act requires an employee to identify a male comparator engaged on either like work, work rated as equivalent under a Job Evaluation Scheme, or work of equal value. The comparator must be employed in the same employment as the applicant. The applicant and her comparator need to be employed at the same establishment or different establishments at which common terms and conditions of employment are observed generally. Once again, however, this legislation is not effective in low pay sectors where both full and part-time work is done by women, and there is therefore no male comparator.[196] Kamlesh Bahl, Chairwomen of the Equal Opportunities Commission, went so far as to say that the legislation "was reluctantly imposed" and "never designed to work" and that as a result, in a number of cases, litigation had been very prolonged.[197]

128. The Directive has been broadly welcomed. However, the British Chambers of Commerce were concerned that the equalisation of treatment between full-time and part-time workers may have the effect of "reducing the number of [part-time] positions that employers are able to offer".[198] This position was echoed by the British Hospitality Association (BHA), who stated that if "employers were to be compelled to give additional benefits to part-time staff to match those given to full-timers", it would be "very concerned about the resulting impact on the provision of part-time jobs". The National Farmers' Union endorsed the aim to end discrimination against part-time workers. However, they were concerned that allowing employees to transfer between full-time and part-time work would be problematic. They argued that "the majority of agricultural employers have very small workforces, and it would be extremely impractical, as well as costly to re-arrange the business to allow for these types of transfers between part-time and full-time work".[199] The Restaurant Association expressed concern that the legislation would give part-timers equal rights to contractual benefits such as incentive schemes, health schemes and public transport season tickets, which had been previously enjoyed exclusively by full-timers.[200] They believed that Clause 4 of the Directive should be used to ensure that "the impact of the regulations do not create a financial burden that would discourage the employment of part-time workers".[201]

129. The claim that the number of part-time work opportunities will be reduced as a result of the part-time working legislation needs to be examined. Research into the outcome of previous legislative changes which have improved the rights of part-time workers does not support this claim. The Employment Protection (Part-time Employees) Regulations 1995 extended certain statutory employment rights (i.e. the right to complain of unfair dismissal and the right to statutory redundancy payment), available to full-time employees who worked more than sixteen hours a week with two years service, to all employees with two years' service. All employees now qualify for these rights on the same basis, regardless of the number of hours they work in a week (provided they meet any other eligibility conditions which apply). The Pensions Act 1995 and the Occupational Pensions (Equal Treatment) Regulations 1995 include provisions designed to ensure that part-time workers have equal access to occupational pension schemes, where they exist. The then Government were fearful that the extension of rights to part-time workers would result in a reduction in the creation of part-time jobs.[202] However, research by the TUC concludes that the incidence of part-time work has risen at a faster rate since the extension of these rights to part-time workers.[203]

130. The legislation which will transpose the Directive on Part-time Work into UK law must seek to overcome the limitations of the Sex Discrimination Act and The Equal Pay Act. However, we are concerned that, if the Directive on Part-time Work is transformed in its basic form it will be no more effective, and in some areas less effective than existing legislation.

Definition of "Worker"

  131. The legislation which transposes the Directive on Part-time Work should incorporate a broad definition of "worker". Clause 2 of the Framework Agreement on Part-time Work, which is appended to the Directive, sets out its scope. The Framework Agreement applies to part-time workers who have an "employment contract or employment relationship as defined in law". [204] There are a number of definitions of a "worker" already in existence in UK law. The definition contained in the Employment Rights Act 1996 (section 230(1)) refers to an individual who has

    "entered into or works under a contract of employment, which means a contract of service or apprenticeship whether express or implied and whether oral or in writing".

This is a narrower definition than that contained in the National Minimum Wage Act 1998. For the purposes of that Act, a "worker" means an individual who

    "has entered into or works under (or where the employment has ceased, worked under)—

      (a) a contract of employment, or

      (b) any other contract, whether express or implied and (if it is express) whether oral or in writing,

    whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual".[205]

The choice of definition will be crucial in ensuring that many of the most vulnerable part-time workers benefit from this legislation.[206] Thompsons told us that the Directive assumes that a wide definition of "worker" will apply because "casual workers would, subject to express exclusion, be included within the definition".[207] Further, as stated above, the Framework Agreement refers to workers who are in an employment relationship as well as those who have an employment contract. Ian McCartney, Minister of State at the DTI, told us that "there is nothing that this Government will do in preparing the proposals [for the legislation] which will undermine what the social partners agreed and we agreed in Council".[208] We believe that a wide definition of "worker" is within the spirit of the Framework Agreement, and strongly recommend that the Government uses a definition of "worker" similar to the one contained in the National Minimum Wage Act, in the legislation which transposes the Directive on Part-time Work into UK law.

Casual Part-time Workers

  132. The Summer 1998 Labour Force Survey shows that 801,000 part-time workers (14 per cent of all part-time employees) were employed on a temporary basis, and that of those, 56 per cent were employed as casual workers (8 per cent of all part-time employees).[209]

133. Clause 2 of the Directive makes provision for Member States to "exclude wholly or partly" from the terms of the Framework Agreement part-time workers who "work on a casual basis". Mark Bradshaw, Director of the British Retail Consortium, suggested that it was acceptable to draw a distinction between permanent employees, and those who worked on a temporary or casual basis.[210] He argued that different terms and conditions should apply to temporary or casual staff regardless of whether they are part-time or full time, and indicated that this was largely the practice adopted by larger companies, where full-time and part-time permanent workers could expect equal treatment.[211] The British Hospitality Association were particularly concerned about the practicality of providing casual workers with certain fringe benefits, such as pension contributions, share options and health insurance.[212] In the case of pensions, permanent status is an eligibility criteria in the vast majority of occupational schemes[213]

134. However, the TUC argued that in practice it would be quite difficult to exclude part-time workers who work on a casual basis, not least because there is no generally accepted definition of a casual worker in UK law.[214] Thompsons pointed out that the case law is "concerned with whether or not casual workers are employees, and not with the definition of a casual worker".[215] A further barrier to the exclusion of casual workers is that their exclusion must be on objective grounds, and not simply because they work on a casual basis.[216] An approach to assessing objective grounds, or "justifying" exclusions, has emerged from the European Court of Justice's Decision in Bilka-Kaufhaus GmbH vs Weber Von Hartz. The "Bilka justification" requires an employer to show that the means chosen to achieve an objective must "correspond to a real need on its part, be appropriate with a view to achieving that objective or reason, and be necessary to that end".[217] While we except that there are different motivational reasons for employing casual workers, we have not heard evidence of any justification which would allow the Government to exclude casual workers from the Part-time Working legislation.[218]

135. Placing excessive costs on businesses would be detrimental to individual firms, their employees and to the economy as a whole. Clause 4 of the Directive on Part-time Work permits Member States to make access to particular conditions of employment subject to a period of service, time worked or earnings qualifications where they are justified for objective reasons. In general we believe that part-time casual workers should have the same access to benefits as full-time workers once they have been employed by their employer for thirteen weeks. This is in line with the arrangements under the Working Time Regulations. An employer wishing to exclude casual workers from specific benefits should be required to show that the decision to exclude corresponds to a real need on its part, is appropriate with a view to achieving that objective and is necessary to that end.

Defining a Full-time Worker for Purposes of Comparison

  136. As we have already mentioned, one of the drawbacks of the Sex Discrimination and Equal Pay legislation is the problem that many part-time workers have in identifying a comparator that will be acceptable to Industrial Tribunals. It is clear that the Part-time Work legislation must seek to overcome the problems currently faced by many part-time workers. Clause 3 of the Framework Agreement states that the term "comparable full-time worker" means

Thompsons have argued that in this area the Directive on Part-time Work is less effective than the existing means of redress for part-time workers; falling short of the provisions in the Equal Pay Act. The Directive uses a narrower definition of a full-time comparator than the Equal pay Act, because it confines comparisons to full-time workers in the "same establishment".[219] It makes no provision for comparisons with full-time employees who do work of equal value.[220] We also note that a recent decision by the Employment Appeals Tribunal[221] upheld a claim under Article 119 of The Treaty of Rome[222], which effectively extended the definition of a full-time comparator, for the purposes of equal pay claims in the UK, to men in the "same establishment or service". The practical effect of "Scullard" is to remove any requirement for an employer to be a company from the Equal Pay Act definition of "associated employer".[223] The legislation which transposes the Directive on Part-time Work into UK law must at the very least provide for a definition of a full-time comparator that part-time workers can use in existing legislation. The widening of the definition of a full-time comparator resulting from recent case law should also be taken into account.

The concept of a hypothetical comparator

  137. However, we were told that even with the above additions to the definition of a full-time comparator there would still be no redress for part-time workers who were working in segregated sectors and occupations; for these workers there may be no full-time comparator. Sheila Wild, Director Employment Policy, with the Equal Opportunities Commission told us that where part-time workers were doing work which was very different from the work being done elsewhere in the workplace, there had to be a way for them to "compare their terms and conditions in the broadest sense with the rest of the workforce".[224] Mary Stacey from Thompsons suggested that one way this could be done was by introducing the concept of a "hypothetical comparator". Thompsons argue that the notion of a hypothetical comparator already exists in the Sex Discrimination Act 1975, which provides that a person discriminates against a woman if "on the ground of her sex he treats her less favourably than he treats or would treat a man".[225] We were told that Tribunals had experience of drawing inferences of unlawful discrimination, and that the concept of a hypothetical comparator should be available to them. A hypothetical comparator would only be used if some primary fact gave cause for a Tribunal to draw an inference that there had been unlawful discrimination.[226]

138. A hypothetical comparator would work in the following way. Industrial Tribunals would use oral and documentary evidence to infer how an employer would have treated an actual comparator if one existed. Tribunals could also use a near comparison. Thompsons suggest that this would be very useful in the context of the part-time workers legislation. It argues that

    "where there is no actual comparable full-time worker engaged in like work or work of equal value, but there is a full-time employee who is at different grade, the treatment of the full-timer could give rise to an inference of how the part-time worker might be treated if they were full-time—even though their job duties could not be said to amount to like work of equal value".[227]

139. To be fully effective the definition of a full-time comparator for the purposes of the Part-time Working Legislation should be broader than that contained in the Directive. We recommend that within the legislation, the definition of a comparator should be a full-time worker with the same employer or in the same service engaged in like work or work of equal value and in cases where no such comparator exists, but where a primary fact gave cause for a Tribunal to draw an inference that there had been unlawful discrimination, the use of a hypothetical comparator should be acceptable.

Government as a Good Employer

  140. The Government clearly has a role to play in changing attitudes to part-time work. Charlie Monkcom, from New Ways to Work, was also keen for the government to use non-legislative as well as legislative measures to promote greater security for part-time workers. He argued that the Government should be an example employer.[228]

141. There are already many examples of good practice in the public sector. An example is the agreement to introduce family friendly policies in the Ordnance Survey. The new policy introduced in 1996 extends previous flexible working and leave arrangements, as follows:

    -  part-timers are allowed to work full working hours if mutually agreed;

    -  meetings are scheduled to take account of part-timers' hours;

    -  part-time and shift workers are allowed reasonable time off for medical appointments;

    -  a relaxation of core time in special domestic circumstances;

    -  the introduction of term time working;

    -  bereavement leave to include miscarriage;

    -  adoption leave to be applicable for both parents;

    -  special leave for urgent domestic distress; and

    -  a formally managed and monitored Career Break/Keep in Touch Scheme.[229]

142. These measures represent a useful benchmark by which to assess the family friendly policies of businesses and Government departments. We urge Government departments and agencies to serve as examples of best practice in offering opportunities for part-time and flexible working at all levels.


192  Framework Agreement on Part-time Work, Clause 1. Back

193  Ibid, Clause 2. Back

194  Ev. p. 118. Back

195  Ev. p. 276. Back

196  Ibid. Back

197  Q. 104. Back

198  Ev. p. 158. Back

199  Ev. p. 303. Back

200  Ev. pp. 304-5. Back

201  Ev. p. 304. Back

202  DE Press Notice 242/94, 20 December 1994 and DE Press Notice 45/95, 7 March 1995. Back

203  Q 16. Back

204  European Framework Agreement on Part-time Work, Clause 2 Sub-section 1. Back

205  National Minimum Wage Act 1998, section 54(3). Back

206  Ev. p. 277. Back

207  Ibid. Back

208  Q. 230. Back

209  Labour Force Survey, Summer 1998, Table 10 (Temporary Employees). Temporary employees in the Labour Force Survey are those who say that their main job is non permanent because it is either fixed period contract work, agency temping, casual work, seasonal work, or other.  Back

210  Q. 72. Back

211  Ibid. Back

212  Ev. p. 190. Back

213  Casey B, Hales J, and Millward N (1996), Employers Pension Provision 1994, DSS Research Report No 58. Back

214  Q. 40. Back

215  Ev. p. 277. Back

216  Framework Agreement on Part-time Work, Clause 2(2). Back

217  Ev. p. 280. Back

218  Q. 72. Back

219  The definition of a comparator in s. 6 of the Equal Pay Act 1970, is "a man employed by [the Applicant's] employer or any associated employer at the same establishment or at establishments in Great Britain which include [the Applicant's] and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes" This is a wider definition than that contained in the Directive on Part-time Work, because it is expected that the term "same establishment" will be interpreted in a very narrow sense (see Memorandum by Thompsons Solicitors). Back

220  The Equal value clauses in the Equal Pay Act 1970, were inserted by S.I. 1983/1794. Back

221  Scullard v Knowles and Southern regional Council for Education and Training. EAT, 29.2.96 (1011/93). Back

222   The ECJ stated in Defrenne v SABENA (No2) 1976, that Article 119 of the Treaty of Rome covered "cases in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public". Back

223  IDS Brief 565, May 1996, p. 17. Back

224  Q. 110. Back

225  Sex Discrimination Act 1975, s. 1(1)(a). Emphasis added. Back

226  Q. 198. Back

227  Ev. p. 285. Back

228  Q. 64. Back

229  Ordnance Survey Family Friendly Policy, Ordnance Survey, June 1997. Back


 
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