The law protects part-time workers from being treated less favourably by their employers than a comparable full-time worker on the ground of their part-time status. Yet, the scope and definition of ‘less favourable treatment’ is continuing to be questioned and redefined. The recent Employment Appeal Tribunal judgment in Forth Valley Health Board v Campbell has helped to provide further clarity on what amounts to less favourable treatment.
The Claimant had claimed that, as a part-time worker, he did not receive a paid break during certain shifts that he worked when compared with a full-time worker who did. The Claimant was seeking to show less favourable treatment on grounds of his part-time worker status. The Claimant would sometimes work 4 hour shifts without a break whereas his colleagues working over 6 hours on the same days were entitled to a 15-minute paid break.
At the first instance decision, the Employment Tribunal held that the claim of less favourable treatment had been proven and awarded the Claimant compensation. However, this decision was later appealed on the basis of whether the treatment of the Claimant was “on the ground” of their part-time worker status.
The Employment Appeal Tribunal (EAT) approached the issue by looking at ‘why’ the Claimant was treated less favourably. The tribunal instead found that the treatment was not because of the Claimant’s part-time status but because of the length of the shift. Despite being a part-time worker, the Claimant did sometimes receive a paid break so it could not be correct to say that he was denied paid breaks ”on the ground of his part-time worker status”. The EAT found that the Employment Tribunal had erred in their decision as shift length was actually the deciding factor in determining whether a worker (whether part or full-time) was entitled to a paid break.
So what is a ‘shorter shift’? Under the Working Time Regulations, a worker is entitled to an unpaid break of no less than 20 minutes if they work a shift of six hours or longer. For a shift of less than six hours there is no statutory entitlement to a rest break irrespective of the worker’s part-time or full-time status. Employers must be more careful with shifts of 6 hours or over and should ensure that all workers working 6 hours or over have the same break entitlement (length and whether paid or unpaid) whether or not they are part or full-time workers. Ensuring this is the case will prevent any justifiable claims of less favourable treatment from part-time workers.
If you are facing problems regarding workers break entitlement or claims of less favourable treatment, our highly experienced Employment and HR team is on hand to assist – please do not hesitate to contact us for more information.