In this article...

• The facts
• The decision
• What does it mean for me?

The Court of Session has decided that an employer’s refusal to give a part-time employee pro rata entitlement to bank holidays did not amount to discrimination under the Part-time Workers Regulations. Sara Woffenden reports.

Some employers allow employees paid time off only for bank and public holidays that fall on days when they would normally work (sometimes referred to as a “normal working days” approach). This presents a potential problem in relation to part-time workers, particularly those who are not contracted to work on Mondays. Since most bank holidays fall on a Monday, workers in that position will be worse off than if their employer had given them pro rata entitlement to bank holidays in proportion to the number of hours that they work.

DTI guidance on the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 suggests that in this situation it may be necessary to remove the disadvantage by giving all workers pro rata entitlement to bank and public holidays. The Court of Session’s recent decision in McMenemy v Capita Business Services Ltd, however, appears to suggest otherwise.

The facts

Mr McMenemy worked on Wednesdays, Thursdays and Fridays for a company that provided business support services throughout the UK. His employer adopted a normal working days approach to public holidays. He brought a claim under the Part-time Workers Regulations, arguing that he was less favourably treated than a comparable full-time worker because he did not receive the benefit of public holidays which fell on Mondays.

The tribunal held that Mr McMenemy had been treated less favourably than his chosen comparator, who worked Monday to Friday and was therefore entitled to paid time off for all public holidays. However, it accepted that the reason for the treatment was not the claimant’s part-time status, but the fact that he did not work on Mondays. Accordingly, the employer’s approach was not contrary to the Part-time Workers Regulations.

The EAT upheld the tribunal’s decision and Mr McMenemy appealed to the Court of Session (the Scottish equivalent of the Court of Appeal).

The decision

The Court of Session noted that the Part-time Workers Regulations had to be interpreted in the light of the EC Part-time Work Directive. This provides that, in the absence of objective justification, part-time workers shall not be treated less favourably than comparable full-time workers “solely because they work part time”.

The Court took the view that, in order for a part-time worker to succeed in a claim under the Regulations, the less favourable treatment must be for the reason that he or she works part-time and for that reason alone. The employee must show that the employer intends to treat him or her less favourably on the sole ground that he or she is a part-time worker.

In this case, it was not disputed that the appropriate comparators were the full-time workers in Mr McMenemy’s team who worked Monday to Friday, and that by comparison with them he received less favourable treatment. The question was whether this treatment was solely because he was a part-time worker.

On examination of the facts, the reason why Mr McMenemy received less favourable treatment was through the accident of his having agreed that he would not work on Mondays or Tuesdays. It was clear that if a full-time member of the team worked a fixed shift from Tuesday to Saturday, he would not receive the benefit of bank holidays which fell on Mondays. Likewise, if Mr McMenemy, or any other part-time member of his team, worked on Mondays, they would receive the benefit of bank holiday Mondays.

On that basis, the Court dismissed the appeal.

What does it mean for me?

One notable feature of the case is that the employer’s business operated seven days a week, and both full-time and part-time workers could in theory work patterns which did not include Mondays. Indeed, the claimant’s line manager had in the past worked full-time on Tuesdays to Saturdays and had lost out on paid bank holidays as a result.

Thus, it is possible that the impact of this decision is confined to sectors such as healthcare, hospitality and retail, where the employer’s business is operational seven days a week with both full-time and part-time workers on a variety of patterns that do not necessarily include Mondays.

On the other hand, adopting the test set out by the Court of Session, it could be argued that even where all full-time workers in the business are contracted to work on Mondays, the existence (actual or hypothetical) of part-time workers who also benefit from bank holiday Mondays means that a worker in Mr McMenemy’s position would not be able to show that the employer intended to treat him less favourably on the sole ground of his part-time status. The less favourable treatment would arise from the fact that, unlike some of his part-time colleagues, he had agreed to a working pattern that did not include Mondays.

Unfortunately, the Court of Session did not directly address this issue so it remains to be seen what approach tribunals will take. It is also worth bearing in mind that, while English and Welsh tribunals and the EAT sitting in England will ordinarily expect to follow Court of Session decisions, they are not required to do so. For the time being, the safest approach for employers who operate on a five-day-week basis, and who therefore give full public holiday entitlement to all their full-time workers, is to continue to apply a pro rata approach in respect of part-time staff.