Using the Part Time Workers Regulations in litigation

Published: 9 Jul 2018

Alison Humphry, Partner at Workwise Legal LLP, explains the differences in the Part Time Workers Regulations and the Equality Act, and when it is most appropriate to use each, or both, of them.

Historically, cases around part time workers’ equality have had to be presented as direct or indirect sex discrimination claims (now under the Equality Act 2010) and the European equal treatment directives. But this can be a complicated way to get to a result, because it requires establishing that women are more affected by men than such a rule which can be time consuming and expensive.

There are other cases where using the Equality Act is not appropriate or useful. While it is true that the majority of part time workers are still women, working patterns are changing for many individuals to more flexible ways of working – whether voluntary or otherwise. Many men are working part time or zero hours arrangements in the gig economy for example. Moreover, more men are taking on childcare responsibility and, most would agree should have equal levels of protection, if they do. One of the unintended consequences of viewing part timer protection as purely a gender issue is that it reinforces the idea that men go to work and women look after the children (and the aged). In the case of Hacking & Paterson and Another, the Employment Appeal Tribunal said that it could no longer be automatically assumed that this was the case.

The Part Time Workers Regulations 2000 (“PTW Regulations”) sweep away a lot of the baggage of using sex discrimination law and are a welcome additional tool, but each of the laws has their own peculiarities, meaning that one might be better than the other in particular situations. In many cases, if bringing a claim based on part time working, it would be prudent to claim both under the PTW Regulations and sex discrimination provisions of the Equality Act 2010.

It is best to use the Equality Act where:

1. The case relates to whether the Claimant can work part time. The Part Time Workers Regulations do not provide a right to work part time – they apply only where one is already part time and looking to enforce equality of treatment as a result of that status. The Flexible Working Regulations might also apply.

2. Where you need to focus on a hypothetical comparator because you don’t have an actual comparator. The PTW Regulations require an actual comparator (although that could be you in your previous full time post in certain circumstances).

3. Where your comparator is a different type of part time worker. For instance, a group of part time workers who are largely women may seek to compare themselves to a different group of part time workers who are largely men and who are more favourably treated. This would need to be pursued under the Equality Act.

It is best to use the Part Time Workers Regulations where:

1. The claimant is a man. While it is theoretically possible to imagine a case where men might be able to bring sex discrimination claims over their part time status, it would be very much simpler to do under the PTW Regulations because men cannot rely on the same arguments as women can.

2. Where the Equality Act claim would be prohibitively expensive for the Claimant to pursue and the PTW claim could achieve the same potential result (but note the comment on injury to feelings below).

It may be best to use both pieces of legislation where:

1. The case relates to you being offered part time work but on less favourable terms than your old job (e.g. lower seniority, or less varied work, or a different job altogether). There is an argument that the Part Time Workers Regulations can be used in these circumstances (because you are permitted to compare yourself to your old job and because you are only being treated less favourably because you want to go part time) but this has not been tested in the courts as yet and it would be good to back it up with an Equality Act claim.

2. The case relates to an organisational rule which is applied generally across a large number of people and where you know that there are a number of part time women affected. This might relate to pension provision; or access to company benefits; or general rules around shift working. These are only examples rather than an exhaustive list.

3. There might be some doubt over the claimant’s employment status – that is, whether they are entitled to receive the protection of the act or whether they are self-employed. The PTW Regulations protect “workers”, which is defined in similar terms to the extended definition of “employee” under the Equality Act but one would not wish to get hung up on technicalities and if both pieces of legislation potentially applied you might use both.

4. Where there is an injury to feelings element to the claim. Injury to feelings awards are not available under the PTW Regulations but are often made under the Equality Act (although not for equal pay claims). One might bring the claim under both laws as a safety measure but hoping to ensure gender impact so that injury to feelings could be claimed.

5. The claimant is the only person affected by the decision and where it might be hard to show that there was a general policy or practice of the organisation, i.e. in the case of a one-off decision. It is possible to establish gender impact on quite small differences – for instance in the case of London Underground v Edwards, the Court of Appeal said that in a small pool the fact that one woman can’t comply was enough to establish the impact – but the PTW would remove the need for that argument.

In any case where there is any doubt or urgency, both claims should be pleaded and can be clarified upon legal advice at a later date.

For free legal advice on employment or benefit issues for working parents and carers please call the Working Families legal advice service helpline on 0300 012 0312.