April 16 2007 Employment Law Enews

Welcome to the latest edition of steeles employment law e-newsletter.

Part-time worker's claim for Monday Bank Holidays

Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations"), a part-time worker has the right not to be treated less favourably than a comparable full-time worker. In determining whether the worker has been subject to less favourable treatment the Employment Tribunal will apply the "pro rata principle". This principle requires that a part time worker shall receive a proportion of the pay or any other benefits that the full time worker receives, calculated in accordance with the number of weekly hours that the part-time worker works, in comparison to the full-time worker.

The recent Court of Session (the Scottish equivalent of the Court of Appeal) case of McMenemy v Capita Business Services Limited concerned a company who operated on a seven day per week basis. Mr McMenemy was employed to work part-time on Wednesdays, Thursdays and Fridays. The company's policy was that employees were only entitled to public holidays (or time off in lieu of public holidays) where they fell on the employees' normal working days. This was reflected in Mr McMenemy's contract of employment. As a result Mr McMenemy was not entitled to time off in lieu for the Monday bank holidays, on the grounds that Monday was not one of his normal working days. Mr McMenemy claimed that he had been treated less favourably than comparable full-time workers as most bank holidays fall on a Monday.

There were two questions for the Employment Tribunal to consider in the case. The first was whether Mr McMeneny was treated less favourably than a comparable full-time worker and if so, whether the reason for this was that he worked part-time.

In relation to the first question, the Tribunal held that Mr McMenemy had been treated less favourably. However, this was not due to the fact that he was a part-time worker, but rather that he did not work Mondays. In reaching this conclusion, the Tribunal paid attention to the fact that Mr Keeman, a full time employee of the company, who worked Tuesday to Saturday, was (some 11 months earlier) also denied time of in lieu of public holidays which fell on a Monday. The distinction was not, therefore, between full and part-time workers but between those who normally worked Mondays and those who did not. Mr McMenemy's claim was therefore dismissed.

Mr McMenemy appealed the decision to the EAT and having lost, to the Court of Session. He argued that the use by the Tribunal of a hypothetical comparator working full-time, but not on Mondays was incorrect. Mr McMenemy argued that the correct comparator should have been an actual comparator, employed by the company, who worked full time on Monday to Friday. Furthermore he argued that the Tribunal had misinterpreted the pro rata principle.

The Court held that the approach of the Tribunal was correct and it had been entitled to use a hypothetical comparator, as there was no actual comparator at the company at the time. The Court also held that Mr McMenemy did not have a free standing right to pro-rata treatment as regards holiday. The pro rata principle related only to the issue of whether the part-time worker had been treated less favourably, when compared to a full-time worker. The Court further stated that the next question to be asked was whether this less favourable treatment was solely because Mr McMenemy was a part-time worker. In this respect the Court found that the reason why Mr McMenemy was treated less favourably was because he had agreed not to work on Mondays. Therefore it was not solely due to the fact that he was a part-time worker. Mr McMenemy's appeal was therefore dismissed.

This case clearly demonstrates that an employer's policy of only paying workers for statutory holidays which fall on their normal working days is not necessarily discriminatory against part-time workers. However, it should be read with a note of caution, as this case focussed mainly on the question of whether the worker's part-time status had to be the sole reason for the less favourable treatment or just one of the reasons. It was also significant in this case that both part-time and full-time workers were denied time off if they did not work on a Monday. This is likely to only be the case where an employer operates on a six or seven day per week basis. In cases where an employer operates on a Monday to Friday basis, if a part-time worker (who does not work Mondays) is denied time off in lieu of Monday bank holidays, this is likely to be discriminatory, when compared to a full-time worker as the full-time workers will all be working Mondays.

ACAS Research on the 2003 Employment Equality Regulations

In December 2003 the Employment Equality (Sexual Orientation) Regulations ("SOR") and the Employment Equality (Religion or Belief) Regulations 2003 ("ROBR") came into force. The purpose of the legislation was to eliminate discrimination on the grounds of a worker's sexual orientation, religion, belief or other similar philosophical belief.

ACAS published the results of their research into the impact of the SOR and ROBR on 2 April 2007. This is the first time that the legislation has been the subject of research and it reveals that between January 2004 and September 2006 some 470 individuals had brought claims under the SOR and 461 individuals had brought claims under the RORB.

The research is interesting reading in terms of the type of discrimination that was complained of. Claims brought under the SOR were dominated by allegations of harassment and bullying, including name calling, threats and physical assaults. Whilst claims under the RORB also featured claims of harassment and bullying, other areas were also identified. These included, disputes over working hours, time off or leave required for religious reasons, promotion, retirement and dress code.

It was noted by ACAS when conducting their study that the claimants who brought claims under the SOR and ROBR were of the view that the grievance procedures which existed in their workplace did not provide a satisfactory means of resolving the dispute. The Statutory Grievance Procedures, introduced on 1 October 2004, require that, in the majority of cases, an employee must raise their grievance formally with their employer, before presenting their claim to an Employment Tribunal. The procedures are currently under review and there are suggestions that they will be repealed and guidelines based on good practice set out in the ACAS code will be put in their place.

The key to eliminating discrimination of any sort in the workplace is to ensure that employers have a good equal opportunities policy in place. This should set out the employer's view on such issues and how problems will be dealt with. If you would like any further information about policies or the in-house training service we offer on discrimination and other issues, please contact us at noremp@steeleslaw.co.uk.

Extending sick pay provisions for disabled employees

Towards the end of 2006 we reported the EAT case of >i>O'Hanlon v Commissioners for HM Revenue and Customs ("HMRC"). The Court of Appeal has recently heard the appeal in this case and delivered its judgement.

The case concerned a disabled employee who claimed under the Disability Discrimination Act ("DDA") that she had been substantially disadvantaged by the HMRC sickness absence rules and that HMRC had failed to make reasonable adjustments to its policy to enable her to continue to receive full pay whilst absent. HMRC operated a sick pay policy which provided employees with full pay for the first six months of their absence, followed by half pay for the following six months. This was subject to an overriding maximum of 12 months sick pay in any 4 year period. Mrs O'Hanlon claimed that as she was disabled she exhausted her right to full pay more quickly than non-disabled employees, thereby putting her at a disadvantage.

The EAT agreed with Mrs O'Hanlon that the HMRC sick pay policy did put her at a disadvantage, however, it recognised that the employer had taken all reasonable steps to alleviate the disadvantage. Her employer had done all it could do to make reasonable adjustments to her role to help her return to work. In these circumstances the EAT held that there was no obligation on the employer to treat the employee as 'an object of charity' and extend the period for which she was entitled to full sick pay.

Mrs O'Hanlon appealed this decision to the Court of Appeal. She argued that as a reasonable adjustment, HMRC should have continued to pay her full pay after the six months full pay provision had expired. She also put forward a new argument, not previously argued before the Tribunal or the EAT. She claimed that in any four year period, under the HMRC policy, disability related absences should not be aggregated with non-disability related absences. The result of this would be that a disabled person should be entitled to six months full pay and six months half pay for any disability related absences and a further six months full pay and six months half pay for any non-disability related absences in any four year period.

The Court of Appeal dismissed Mrs O'Hanlon's appeal and held that extending the provisions in this way and making extra payments for disability related absences would provide a disincentive to return to work. The Court agreed with the EAT that the purpose of the DDA was to "recognise the dignity of disabled individuals and require modifications which will enable them to play a full part in the world of work. It is not to treat them as objects of charity."

However, the Court confirmed that the case of Nottinghamshire County Council v Meikle remained authority for an employee to claim pay they have lost as a result of a breach of the employer's duty to make reasonable adjustments. The Meikle case was distinguished from O'Hanlon, as, unlike in the O'Hanlon case, the employer had failed to help the employee return to work by making adjustments to his role.

This article copyright © 2007 Steeles Law llp. All rights reserved.