"Momentous" decision for part-time workers

01.01.06

"Momentous" decision for part-time workers

The House of Lords recently heard an appeal made on behalf of 16,000 part-time firefighters who claimed that they should be entitled to join the fire brigade's pension scheme. Some of the main provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 were considered for the first time. In terms of the Regulations a part-time worker has the right not to be treated less favourably than a comparable full-time worker, unless the difference in treatment can be objectively justified.

The full-time firefighters worked a very structured shift system while the part-timers attended 2 to 3 hours per week for training and were on call for a set number of hours. The main responsibilities of the roles were the same, other than only the full-timers were required to assist with fire safety workload (for example, by carrying out inspections).

In order to decide whether the part-time firefighters should have the right to the same benefits as their full-time colleagues the House of Lords had to consider whether they were engaged in broadly similar work. The similarities of the work were considered rather than focussing on the differences. The fact that the firefighters' role when putting out fires was exactly the same regardless of their full-time or part-time status was viewed as being very important.

The House of Lords found that, although there were some differences in the work activities of full-time and part-time firefighters, their work was sufficiently similar so that the part-timers had the right not to be treated less favourably. They were, therefore, entitled to the same pension rights - a decision described by the Fire Brigades Union as "momentous". Certainly, it will have wide-ranging implications and is likely to encourage claims from part-time workers in all sectors.

It is important to remember, however, that even if a part-time worker can compare himself with a full-time worker, the obligation on an employer is to provide the same pay and benefits on a pro rata basis in line with the number of hours worked. Even then, an employer may be able to objectively justify treating a part-time worker differently, for example in relation to the provision of share options and health insurance. A failure to provide share options is likely to be justified where the potential benefit to the part-timer is less than the likely cost of realising them, while not providing health insurance (which cannot easily be divided pro rata) may be justifiable if the cost to the employer of providing the benefit is disproportionate to the number of hours worked.

To speak with a member of our team please contact Julie Keir on 0131 656 0297 or at julie.keir@brodies.com or Emma Bell on 0131 656 0361 or at emma.bell@brodies.com.