Legal ease: Put in the hours for the part-timers

Part-time working is becoming increasingly popular for a number of reasons. The pandemic-induced lockdowns forced many employers to reconsider working patterns, leading managers to be more willing to agree to part-time arrangements in the future.

Businesses facing recruitment challenges may well find that offers of part-time working open up a fresh seam of candidates, too.

Recently, Zurich Insurance reported a fivefold increase in female appointments following a policy decision to advertise all roles as open to part-time and flexible working. The insurer also saw 45% more women appointed into senior roles since this policy was introduced.

Part-time working with the right to request flexible working is set to become a day-one right. This means candidates, as well as current employees, could request part-time working.

● Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000/1551, employees must not be treated less favourably because of their part-time status; for example, assuming their level of contribution is less and awarding a lower pay rise as a result would be unlawful.

● Consideration must be given to rewards and benefits. In principle, it would be unlawful to refuse to extend the same benefits (despite the potential costs) and the law expects employers to pro rata these entitlements.

● Detrimental treatment of a part-time worker could result in a legal complaint, for example denying access to training or selecting a part-timer ahead of a fulltime employee in a redundancy selection exercise. As well as being contrary to the regulations, such treatment could also be indirect sex discrimination under the Equality Act 2010 because part-timers are predominantly women. Disadvantageous rules or conditions would be difficult to justify or defend. Similarly denying a part-timer promotion because you are seeking a full-time person could be problematic and may be unlawful.

● Careful consideration must be given to rules around overtime working and holiday accrual, and holiday pay. Statutory holidays may be better or worse depending on the days worked and need to be addressed.

● The government has just opened a consultation about the calculation of holiday and holiday pay for part-year and irregular hours workers. In some cases, their holiday pay may actually be higher than others.

● Consideration is needed where a part-time arrangement is in place or needed due to a significant health condition or disability. Additional rights apply here, including the duty to make reasonable adjustments. Often these disability-related rights will have priority over other part-time requests.

As part-time arrangements increase, we may also see more job share arrangements, where two or more workers split a role between them. These can be advantageous, maximising skills and appealing to more candidates but require careful management.

Each individual in the shared role must be treated according to their individual merits, even though performance and output will be affected by the co-working arrangements. What if one partner is excellent but the other is a poor performer? Managers need to undertake job matching carefully, for example by building in trial periods.

Finally, part-time working will impact on earning levels; thus, pension arrangements, contribution levels and other flexible benefit or salary sacrifice schemes require special consideration in their design and roll-out.

Audrey Williams is employment partner at Keystone Law