This month we tackle some of the tricky questions we are asked about the rights of part time workers.
Q1: How should we calculate a part time worker’s holiday entitlement?
Full time staff are entitled to a minimum of 28 days (5.6 weeks) holiday under the Working Time Regulations 1998. This is pro-rated for part time staff.
It is often more straightforward to convert the holiday entitlement of a comparable full time worker into hours before applying the pro rata principle particularly where the worker does not work the same number of hours each day.
Example: A part time worker works 21 hours per week, Monday to Wednesday.
· Full time worker’s hours of work per week: 35 hours per week (7 hours per day)
· Full time worker’s annual Holiday entitlement: 196 hours (28 days)
· Part time employee’s pro rata annual holiday entitlement: 0.6% of equivalent full time entitlement
· Calculation: 0.6 x 196 = 117.6 hours (rounded up to 118 hours) or 16.8 days (rounded up to 17 days) *
*it is only strictly necessary to round up holiday to the nearest day or half day where the employee is in the first year of employment. Unless the contract of employment stipulates otherwise, employers can require staff to only receive the precise hourly holiday they are entitled to after this period.
Q2: What do we need to do about bank holidays?
Employees are not entitled to take bank holidays off unless their contracts of employment provide for this. If we assume that the worker above is required to take off bank holidays that fall on her normal days of work, these will be deducted from the total of her holiday entitlement. In practice, this may mean that part-time staff who normally work on Monday (when most bank holidays fall) have less choice about when they take their leave.
Q3: Is holiday entitlement calculated differently for annualised staff?
No. Staff who work annualised hours are entitled to have the same pro-rata entitlement to holiday as a full time member of staff working a “normal” pattern. However, these staff will usually have to take their holiday at specific times of the year in line with their contract terms. Depending on their work pattern, some of this may be deemed to be unpaid leave.
Q4: Can we ask our part time staff to arrange antenatal or other appointments on days when they are not working?
You can certainly ask your part time staff to arrange general appointments outside of their normal working hours, but you should not insist they do so, unless you operate the same rules for your full time staff.
All women have the right to take time off work to attend antenatal classes, irrespective of the number of hours they work each week. Whilst most women will try and fit antenatal appointments around their working hours, this is not always possible. Antenatal clinics and consultant’s appointments are generally on set days and times each week and women may have no choice about when to attend.
Q5: Can we specify that we need a full time employee? What should we do if the candidate says that s/he wants to work part time?
You can specify that you need a full time employee if you can justify it but, as a general rule, it is best not to do so. If an otherwise suitable candidate tells you s/he can only do the role on a part-time basis you will have to consider this and, for example, investigate if the role can be undertaken as part of a job-share etc or done on a part time basis. Any refusal to allow part-time working will need to be justified.
This is because the requirement to work full time may indirectly discriminate against women, who are, in the main responsible for childcare responsibilities and are therefore less likely to be able to comply with a requirement to work full time. It could also indirectly discriminate against those with disabilities whose health makes it harder for them to work full time.
The best approach is to consider all applications on their merit, and if someone asks to work part-time, ask them why (and how they perceive the organisation can get over any potential issues you believe this may cause) and give careful consideration to their request.
You are perfectly entitled to refuse the request if you have legitimate reasons for requiring someone to work full time (such as impact on client service etc) or you cannot recruit someone else to support the part-time employee. If challenged, you will need to justify the requirement to work full time. To do this, you will have to show that working full time is necessary to effectively perform the job, or is necessary for the efficient running of the business, and that there is no less discriminatory way of achieving this. Management preference or administrative convenience will be insufficient to justify a refusal to agree to part time working.
It is also worth remembering that if you would accommodate a request to work part time from a woman, but refuse a similar request made by a man, you will expose the business to a complaint of direct sex discrimination (which cannot be justified).
Q6: Can we insist that our part time workers attend training on days when they are not normally required to work?
Not unless there is a contractual obligation imposed on the part time worker that is set out in their terms and conditions of employment. If you have included a term to this effect, then you will be able to insist the worker attends training. You should pay them for the additional time commitment (or give them the appropriate time off in lieu on one of their normal working days) and give them sufficient notice to enable them to make whatever domestic or other arrangements they need to comply with the request.
If you have not included a term in the contract you can, of course, ask your part time staff to attend training, but you cannot insist that they do so. You should not punish any part time workers who cannot comply with your request. Most staff will attend training days particularly if you give them plenty of notice.
Q7: Can the terms and conditions of employment differ between full and part time staff?
Not normally. Part time workers have the right to comparable terms and conditions as full time staff and are entitled to the same basic rates of pay; bonuses and shift allowances; contractual sick pay; holidays; career breaks; all family related leave; fringe benefits, such as staff discounts; subsidised mortgages etc and access to pension schemes.
Pay rates should be the same as comparable full time workers but bonuses, holidays etc can be, and often are pro-rated.
Family friendly leave and pay arrangements must not be pro-rated and part time staff are able to take the same amount of leave and pay as a full time member of staff.
Q8: We pay enhanced overtime rates to our full time staff. Do we have to apply these to our part time staff if they work any overtime?
No. The laws around this are very complicated, but generally, you can restrict overtime payments to part time staff provided you apply the same rate of overtime pay to any overtime hours worked in excess of the normal hours worked by full time staff.
This means that you can pay a lower overtime rate to part time staff until they reach the threshold applied to your full time workers. Take this example:
· Full time staff work 35 hours per week. Additional hours worked are paid at an enhanced rate (time and a half).
· Part time staff are paid at their usual hourly rate until they reach 35 hours per week. Hours worked in addition to this must also be paid at the rate of time and a half.
If the part time worker is only contracted to work 10 hours a week, he would have to work an additional 25 hours before he was entitled to the enhanced rate paid for overtime.
Q9: Are the 10 keeping in touch days during maternity and adoption leave pro-rated for part time staff?
No. All part time staff taking maternity, adoption or shared parental leave are entitled to take the full number of keeping in touch days. They must not be pro-rated. They do not of course have to use them all.
Q10: Do part time staff have the right to receive a redundancy payment?
Yes. Part time staff that are made redundant are entitled to receive a redundancy payment if they meet the usual requirements. These requirements are that they have worked for the same employer for at least 2 years and are an employee not a worker.