I have a part time employee who works Tuesdays, Wednesdays and Thursdays and have been told that I need to pro rata Bank Holidays for them. Is that correct?
Assuming that the annual holiday entitlement is 5.6 weeks plus bank holidays, the employee who does not work on Mondays will be disadvantaged if they are only permitted paid time off for bank holidays that fall on days when they would normally work.
This raises a potential issue under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), which entitles part-time workers to be treated equally with comparable full-time colleagues. However, the law is still unclear on whether less favourable treatment in this situation can be said to be on the grounds of part-time status (see below).
The simplest way to achieve equality in this situation is to give both part-time workers a pro-rated entitlement to all public holidays. For example, assuming the employees are working three full days each week, they would each be entitled to three-fifths of the normal bank holiday entitlement for a full-time employee, which amounts to 4.8 days.
While a pro rata apportionment of bank holidays presents the least risky course of action and is undoubtedly good practice, it is not necessarily the case that a policy of only paying for bank holidays that are normal working days will be unlawful. The normal working days approach will always result in a part-time worker who does not work Mondays being treated less favourably than a full-time employee who does, but this is not sufficient in itself to establish liability.
In one case on this point, the employer took a normal working hours approach to paid bank holidays. A tribunal held that the claimant (who worked part-time Wednesday to Friday) was treated less favourably than his chosen full-time comparator (who worked Monday to Friday) as his entitlement to paid bank holidays was less than he should have received applying the pro rata principle.
However, the Tribunal accepted that the reason for this was not the claimant's part-time status, but the fact that he did not work Mondays. The business operated seven days a week, and both full-time and part-time workers could 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.
On appeal, the Appeal Tribunal held that the tribunal had been entitled to reach that decision on the reason for the less favourable treatment and acknowledged that the employer's policy disadvantaged more part-time workers than full-time workers. However, the PTW Regulations give no protection from indirect discrimination and therefore the claimant's case failed.
The case was appealed again and the Court of Session agreed with the Appeal Tribunal. In particular, when deciding the “reason why” issue, the tribunal was entitled to consider the position of a hypothetical comparator. There was nothing wrong with the tribunal asking itself what would have happened if there had, at that time, been a full-time employee in the same team who worked Tuesdays to Saturdays (that is, not Mondays), and it was open to the tribunal to conclude on the evidence before it that such an employee would have been treated the same as the claimant with respect to statutory holidays falling on Mondays.
The Court confirmed the approach that part-time status must be the sole reason for the treatment, rather than one of a number of different reasons.
The full impact of this case on the rights of part-time workers to pro rata paid bank holidays has yet to be determined. Following more recent decisions, it is likely that it will be confined to cases in which the employer's business is operational seven days a week with both full-time and part-time workers on a variety of patterns that may or may not include Mondays. This in itself would encompass a great many sectors including retail, hospitality, healthcare and transport.
Employers who operate a Monday-to-Friday week (at least in England and Wales) will find it more difficult to avoid a finding of less favourable treatment by arguing that the reason for the treatment is not (or at any rate, is not solely) the part-time status of the affected workers, but the fact that they do not work on Mondays. Such employers are likely to have to provide pro rata holiday entitlement or seek to rely on objective justification.
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