As stated above, the DBERR has suggested that a part time worker will receive the increased holiday entitlement on a pro rata basis regardless of whether or not they usually work on bank holidays. The issue of applying the pro rata principle to part time employees who do not work on statutory holidays has always been complex. Some employers allow part time workers paid time off only for public and bank holidays which fall on days when they would normally work. The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations) establish that a part time worker has the right not to be treated less favourably than the employer treats a comparable full time worker in relation to the terms of his contract or by being subjected to any other detriment by the actions, or deliberate failure to act by his employer. The policy of allowing paid time off only in respect of public holidays which fall on days when individuals would normally work will potentially be in breach of their PTW Regulations because it means that some part time workers (generally those who do not normally work on Mondays) are treated less favourably than comparable full time employees.
However, a recent case, McMenemy v Capita Business Services Ltd  IRLR 761 has indicated that there is no discrimination against the part timer if a full-time worker is not entitled to anything in respect of bank holidays. In that case, the employer operated a seven day working week. The employee worked part time on Wednesdays, Thursdays and Fridays. The company’s standard employment contract provided that employees were only entitled to public holidays when they fall during normal working hours. Consequently, the employee was refused time off in lieu of public holidays that fell on Mondays as this was not one of his working days. The employee brought a claim under the PTW Regulations arguing that he had suffered less favourable treatment compared to full time colleagues based on his part time status. The tribunal and the employment appeal tribunal dismissed the employee’s claim on the basis that a comparable full time worker who worked Tuesday to Saturday was treated in exactly the same way.
The facts of this case were unusual in that the company operated a seven day week operation and therefore a full time worker who did not work on a Monday would have been treated in the same way as the part time employee. The reason why the employee did not receive time off in lieu of the public holiday was not because he was a part time worker; it was because he did not happen to work on Mondays.
While a pro rata apportionment of bank holidays is undoubtedly good practice and represents the safest course of action for employers, the decision does appear to confirm that a policy of only paying for statutory holidays that are normal working days is not necessarily unlawful. When normal working days are Monday to Friday, the position will be less clear as anyone working full time will, by definition work on a Monday and the employer will not be able to point to a full time comparator who is treated in the same way. However, the decision will be useful for many sectors of employment who operate a seven day working week. Having said that, however, where the complainant is a woman there may also be a risk of an indirect sex discrimination claim arising and employers may well do best to adopt the DBERR’s guidance on part time workers rights’ and pursue a pro rata approach.