Bank Holidays and Part-Time Workers

by Hazel Phillips

One of the main aims of the European Union has always been to create equality in the terms and conditions of male and female workers. However, it became apparent that efforts were being undermined because part-time workers did not enjoy the same status as their full-time colleagues.  As a higher number of women than men predominantly work part-time, women suffered more from this detriment.

The EU introduced a directive to address this imbalance which became law in England and Wales via the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. These Regulations make it unlawful to treat part-time workers less favourably than full-time workers solely on the basis that they work part-time unless such treatment can be objectively justified.

Although, this legislation has not caused too many problems for employers, an area of contention has existed in relation to holiday entitlement.

Under the Working Time Regulations, employees are currently entitled to 4 weeks holiday including public holidays. As most public holidays fall on a Monday, this has led to disputes as to how part-time workers who do and do those who do not work on a Monday should be treated.

It is clear that if full-time workers are allowed to take time off in lieu if they would otherwise be required to work on a public holiday, part-time workers who do not work on Mondays will suffer as they are not able to benefit from the time off in lieu.

The DTI guidance on holidays recommends that all employees (including part-time workers) be given a pro rata entitlement to time off in lieu according to the number of hours worked so that part-time workers are not treated less favourably by missing out on time given for public holidays but a recent case has thrown doubt on that approach.

In the case of McMenemy v Capita Business Services Limited, Mr McMenemy worked part-time Wednesday, Thursday and Friday. Capita had a policy of only allowing employees to take time off on public holidays if those holidays fell on days on which the employee normally worked. As most public holidays fall on a Monday, Mr McMenemy argued that he was being treated less favourably than his full-time colleagues because this was a benefit which was being denied to him solely because he worked part-time.

Unfortunately for Mr McMenemy, the Court of Session in Scotland ruled that the reason he was not entitled to take time off in lieu of Monday bank holidays was not because he was a part-time worker but because he did not work on Mondays. The Court of Session stressed that intention was fundamental under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and that Capita would have treated a full time employee who did not work on Mondays in exactly the same way.

This is an important case for employers because it highlights the limits of the Regulations. They only apply if the reason for the difference in treatment is solely that the employee is a part-time worker. If there is another reason for the treatment (whatever it may be), the treatment will not be unlawful despite the fact that the employee has suffered a detriment by comparison to their full-time colleagues. Employers will, therefore, be allowed to continue with legitimate business practices which treat employees differently provided that the reason for the difference is related to business policies and that the employer’s intention is not to discriminate due to the employee being part-time.

For all employers who have part-time staff, this case is a useful reminder of the constant need to review policies and procedures to ensure that part-time workers are not being treated less favourably. However it does, perhaps, also put an end to the debate about part-time workers and bank holidays. Policies which only allow paid time off for days that employees would otherwise have worked will be lawful even in circumstances where employees work a fixed shift pattern which, for part-time workers, does not include Mondays.

Nevertheless, the fairest way to deal with this issue is still to pro rata holidays including public holidays based on the number of days in a week that the employee works. This approach avoids the need to have to show that the reason for the difference in treatment is something other than part-time working because, in this scenario, there is no detriment at all. 

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For further information on part time workers or any other employment law issue, contact Burnetts' employment law solicitors on 01228 552222.

May 2007