Part-time work
ACCA's response to the Department of Trade and Industry's consultation document on part-time work is set out below.
ACCA would like to make the following three points on the draft regulations.
Firstly, the regulations as drafted will only redress less favourable treatment of part-time employees where there are full-time workers with whom a direct comparison on the basis of experience, qualifications and working conditions can be made. This in itself may not be enough to encompass all forms of unfair treatment of part-timers in the workplace.
Secondly, as the impact assessment study points out, out of 6 million part-time workers, only 1 million are estimated to have a comparable full-time employee against whom to measure themselves. In many businesses, therefore, there will be no full-time staff who meet the three criteria set out in paragraph 2(3) of the regulations and comparison may, instead, be sought with workers in other firms and industries. This presents the prospect of part-time workers making claims for improved treatment which are based on an unsustainable comparison with other workers. The pay structure and general working conditions that are in operation in any one firm will invariably be influenced by non-transferable factors such as the degree of profitability and efficiency of the business concerned as well as by the individual practice of the employer with regard to his staff generally or to individual members of his staff. The Government should be careful not to give rise to an inflationary environment in which part-time workers feel moved to 'leap-frog' by claiming unreasonable comparisons with workers in other firms. Even where there are full-time employees in the same firm, it may not always be straightforward to compare full- and part-time workers on the basis of qualifications, skills and experience.
Accordingly, where a part-time worker wishes to exercise his or her rights under the regulations, the onus should be on him or her to argue that his or her working conditions should be compared with particular workers. Also, when complaining to an employment tribunal, it should be the responsibility of the part-time employee to demonstrate that discriminatory conduct has taken place. This should not be onerous since an employee who considers making a complaint in the first place can expect to have satisfied him/herself that grounds exist for taking this action. In response to a request for a written statement under regulation 4(1), the employer will have had the opportunity to consider and explain whether or not, in the circumstances of the case, the working conditions of the part-timer should be defined by reference to the conditions of the firm's full-time employees, if any. It should thereafter be a matter for a tribunal to review the facts of the case and decide whether it is reasonable for the working conditions of the part-time employee concerned to be compared with those of any full-timer.
Thirdly, paragraph 6(6) of the draft regulations provides that, where an employee presents a complaint to an employment tribunal, it is for the employer to identify the ground for the less favourable treatment. As worded, the implication is that a complaint will always be well founded. Any responsibility on the part of the employer to defend his conduct towards the part-time employee concerned should follow a provisional conclusion, based on the evidence supplied by the employee, that less favourable treatment has actually occurred. If there is such a provisional conclusion, then at that stage the employer should be asked to defend his position, which may be based on the 'objective reason' defence in regulation 3(2)(b). Invariably, this reason will already have been given to the worker in the written statement provided for under regulation 4(1).