Overview Part Time Employment Legislation
The Protection of Employees (Part-Time Work) Act makes provision for part-time employees. The Act implemented the EU Directive in relation to part-time work. The Directive seeks to promote part-time work and eliminate discrimination between part-time workers and full-time workers.
The legislation recognises the importance of developing access to part-time work and job sharing as a strategic response to modern, flexible work organisation. Access to part-time work encourages and promotes a flexible labour market and has positive economic and social benefits. It may assist in facilitating further education, training, increasing participation of older persons, providing meaningful options for persons with disability and providing workload balances options generally.
Part-time workers may not be treated in a less favourable manner than comparable full-time workers in respect of employment conditions, solely because they work part time unless the different treatment is justified on objective grounds. Provisions in an agreement to the contrary are void.
Part Time Workers
A part-time employee is an employee whose normal hours of work are less than the normal hours worked by a comparable employee. Normal hours of work mean in relation to an employee, the average number of hours worked by the employee in each day during the reference period.
The legislation applies to employees working under contracts of service or apprenticeship. The Unfair Dismissals, Redundancy Payment Acts, minimum notice, carer’s leaves apply to part-time workers. The legislation covers agency employees who are supplied to a hirer.
The part time workers legislation has limited application to casual part-time workers. A worker is a casual part-time worker
- if he has been in continuous employment for less than 13 weeks and
- that period and previous periods of employment with the employer are not of such of a nature that they could be regarded as regular or seasonal or
- by virtue of fulfilling conditions in a collective agreement, he is regarded as a casual part-time employee.
A part-time employee is one whose normal working hours are less than the normal hours of work of a comparable employee. Normal hours are the average number of hours worked each day during the reference period. The comparison is made in respect of this period, which may be between seven days and a year.
The possible extent of the reference period is broad enough to embrace seasonal workers, as their working hours over a 12-month reference period are usually less than those of a comparable full-time employee. Part-time workers are entitled pro rata, to the same rights as full-time employees.
The reference period is a period between seven days and 12 months’ duration. It is to be the same period by reference to which the other the normal hours of work of the comparator employee is determined. In that period, the number of hours worked by the employee concerned is to constitute a normal number of hours worked by the employee in a period of that duration. Employment is deemed continuous unless the service is terminated by dismissal or resignation.
Equality Rights for Part Time Workers
Part-time employees may not be treated less favourably than comparable full-time employees unless there are objective reasons for the less favourable treatment. A pro rata comparison is made of the part-time employee’s position to that of a full-time employee, for this purpose.
Remuneration and benefits granted to part-time employees should be proportionate to those of full-time employees, absent justification on an objective ground. Prorated benefits will generally be required for those who are dependent on the number of hours worked, for example, annual leave.
Apart from the specific prohibition against discrimination on the basis of part-time status, there also may be indirect discrimination in respect of part-time employees on the gender or married person ground. This is because part-time employees are more likely to be female or married as opposed to unmarried. It will depend on the particular circumstances and on whether the requirement to work full-time is necessary, as to whether discrimination may arise on the grounds of gender or marital status or family grounds.
The provisions in respect of the comparators are similar to those applicable fixed-term employees. The primary comparator is one employed by the same employer or by an associated employer. If none such is available, an employee covered by a collective agreement, which is common to both, may be used. If no comparator is available in these categories, the comparator employee may be one employed in the same industry or sector,
An employee is a comparable employee
- if the employee and the relevant part-time employee are employed by the same employer or associated employer
- If there is not a common employer or associated employer, (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or
- If neither of the above applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed.
Accordingly, if there is no comparable employee of the employer, then reference may be made to a comparable employee in the same industry or sector.
Care needs to be taken to ensure that the comparator does, in fact, perform same or similar work. Each and place of employment will differ, and there may be a difference in the role and nature of the work undertaken.
Basis of Comparison
The claimant and comparator must be employed in the same work under the same or similar conditions or such that they are interchangeable. The work performed must be of the same or similar nature to that performed by the other, and the differences are of either small importance or insufficiently regular so as to be significant.
The work must be equal or greater in value to the work performed by the comparator, having regarded to the skill, mental, and physical requirements, responsibility, and working conditions.
The following conditions must be satisfied
- both of the employees concerned perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work; or
- the work performed by one of the employees concerned is of the same or similar nature to that performed by the other and any difference between the work performed or the conditions under which it is performed by each other are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant and
- the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility or working conditions.
Justification for Differentiation I
Equality of treatment, as between part-time and full-time employees is measured pro rata. The pro rata principle does not necessarily apply in all cases. It applies only to benefits that are appropriately determined by the number of working hours. There must be an objective basis for this link.
A ground is not regarded as an objective ground for the purposes of the legislation unless it is based on considerations other than the status of the employee concerned as a part-time employee. The less favourable treatment it involves for that employee must for the purpose of achieving a legitimate object of the employer, and it must be appropriate and necessary for that purpose. Cost by itself is not sufficiently objective reason.
The justification must be by reference to demonstrable factors relative to the employment to which it relates in the context in which it occurs. That criteria must be objective and transparent and must be for the purpose of a genuine need.
Justification for Differentiation II
Any objective justification for a difference in conditions or in treatment is determined in the event of a dispute, by the WRC / Labour Court. A ground is regarded as objective unless it
- is based on considerations other than the status of the employee as a part-time employee;
- the less favourable treatment which it involves is for the purpose of achieving a legitimate objective; and
- such treatment is appropriate and necessary for that purpose.
Pension schemes and arrangements need not apply to an employee whose normal hours are less than 20% of the normal hours of comparable full-time employees. It is not clear if this is permissible under the underlying Directive.
A casual part-time employee is one who has been in continuous service of the employer for less than 13 weeks and whose service is not regarded as regular or seasonal employment or falling within a collective agreement approved by the Labour Court. A casual employee may be treated in a manner that is less favourable, provided that it is objectivity justified.
A part-time worker employed on a casual basis may, if such less favourable treatment is justified on objective grounds, be treated in a less favourable manner than a comparable full-time employee. A wider basis of objective justification may be applied to casual part-time workers.
The prohibition on less favourable treatment does not apply to a part-time employee in respect to pension arrangements, where his normal working hours constitutes less than 20% of normal work hours, of the comparator.
Enforcement of Legislation
A breach of the legislation may be the subject of a complaint to the Workplace Relations Commission made within six months. This may be extended to 12 months for a good cause. Complaints under the legislation are referred to a WRC adjudicator (formerly a Rights Commissioner) in the first instance. The WRC may determine the matter and require the employer to comply.
The adjudicator may declare the claim to be well-founded or not. He may require the employer to comply with the provision, reinstate to re-engage the employee including on a contract of indefinite duration. It may require the employer to pay compensation of such an amount as is just and equitable in the circumstances, up to two years’ remuneration. The general rules of mitigation of damage apply in respect of awards of compensation.
Part-time employees may not be penalised for invoking rights under the legislation, acting in good faith in opposing unlawful action or for giving evidence in proceedings. They may not be dismissed wholly or partly for or connected with, the purpose of avoidance of a contract being deemed to be of indefinite duration.
Either employer or employee may appeal against the decision to the Labour Curt. There is a further appeal to the High court on a point of law. As with other equivalent legislation, the decision of the WRC or Labour Court may be enforced through the District Court or Circuit Court, if it is not complied with.
Facilitating Part Time
The relevant EU Directives provide that States in consultation with social partners should seek to identify obstacles of a legal, structural nature or an administrative nature to part-time work and seek to eliminate them.
The underlying Framework Agreements on which the Directives are based provides that employers should give consideration to a request by a worker to transfer from full-time to part-time employee work, a request to transfer from part-time to full-time work that becomes available or an increase in working time when an opportunity arises.
Information must be made available in a timely fashion in relation to the availability of full-time and part-time work at the various levels in the business. This may include, where appropriate, the facilitation of access by part-time workers to vocational training in order to enhance career opportunities and occupational mobility.
Requesting Part Time I
The Code of Practice on Access to Part-Time Working, made under the Industrial Relations Act provides for best practice in relation to part-time employment. It is comprised in secondary legislation. It promotes policies and procedures to assist improved access to employment for employees who wish to work part-time. It promotes discussion and encourages employers and employees to consider part-time work and address barriers to it.
It requires a procedure with an application by a worker outlining the reasons for the request for a transfer from full-time to part-time working, indicating whether it is proposed to be temporary or permanent and a reasonable timeframe in which to consider the application;
A decision should be issued to the applicant. The details of agreed part-time arrangements should be discussed and agreed.
The employer may take account of the business needs of the organisation. If the application is refused, reasons should be given. There should be recourse to appeals in the event that a mutually satisfactory solution is not reached. This may be through the grievance procedure within the organisation.
Requesting Part Time II
In considering the application, the employer should take account of all factors relevant to the organisation and personal to the applicant including
- personal and family needs;
- number of employees already availing of part-time work;
- additional resources required to meet part-time cover and other business operational needs;
- the urgency of the request;
- period of time covered;
- the employee’s legal rights in employment;
- the equal opportunities policy of the organisation;
- how the revised hours will fit with the particular job and how they will be performed;
- the implications of the conditions of employment;
- the effect on staffing needs; and
- the procedure for reviewing the arrangement.
Promoting Part Time Work I
The code requires that employers should consider providing access to part-time work in the context of developing the company and organisational policies and practice, in order to respond to modern working environments, including mechanisms to promote flexible work employment opportunities and the work life balance.
The code recommends as best practice that businesses introduce in consultation with employees, policies to facilitate effective access to part-time employment and specify how part-time working employment may operate. They should assess and expand the scope of part-time employment opportunities.
The code recommends that businesses should explore, in consultation with employees and representatives, the possibility of introducing part-time work. They should maximise the range of positions suitable for such access within the organisation, including skilled and managerial positions. Objective criteria should be developed to determine the suitability of positions for part-time working.
Promoting Part Time Work II
In removing obstacles to part-time work, the following should be considered
- the demand for part-time work;
- whether if such a demand exists, work can be organised differently to facilitate this;
- how the organisation might process a request for part-time working;
- the business implications of part-time work;
- the regulatory or licensing issues;
- the implications for seniority and service;
- issues of demotivation or poor morale in not providing part-time work;
- opportunities to re-deploy part-time employees in the interest of career development; and
- employment equality implications.
The outcome of the assessment of part-time working should indicate the factors taken into account in evaluating and determining part-time working options, the potential for part-time working to contribute to the organisation and barriers of these steps, which might be overcome.
The code, in common with other employment codes, does not have the direct force of law. It may be admissible, however, in complaints to the WRC and to the Labour Court.
References and Sources
Employment Law Meenan 2014 Ch.
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
Drafting Employment Contracts 3rd Ed. Gillian Howard 2017
The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016
- Overview Part Time Employment Legislation
- Part Time Workers
- Reference Period
- Equality Rights for Part Time Workers
- Basis of Comparison
- Justification for Differentiation I
- Justification for Differentiation II
- Enforcement of Legislation
- Facilitating Part Time
- Requesting Part Time I
- Requesting Part Time II
- Promoting Part Time Work I
- Promoting Part Time Work II
- References and Sources