Part-time employees

The Protection of Employees (Part-Time Work) Act, 2001 came into operation on 20 December 2001. The Act provides that a part-time employee shall, in respect of his or her conditions of employment, not be treated in a less favourable manner than a comparable full-time employee in respect of employment conditions solely because they work part-time, unless different treatment is justified on objective grounds. The Act also provides that all employee protection legislation applies to a part-time employee in the manner as it already applies to a full-time employee. The Act also aims to improve the quality of part-time work, to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account both the employer and employee.

The Act applies to all part-­time employees in both public and private sectors including apprentices and agency workers. In the case of agency workers, the party who is liable to pay the wages (employment agency or client organisation) will normally be deemed to be the employer for the purposes of the Act and be responsible for ensuring that a part time employee is not treated in a less favourable manner than a comparable full­-time employee.

The Act affords protection to part-time employees who work on a casual basis. Under the Act, an employee is considered casual if he or she has been in the continuous employment of the employer for less than 13 weeks and the period of service and any previous period of service by the employee with the employer is not of such a nature than could be regarded as regular or seasonal or if the employee is regarded as a casual employee as specified in a collective agreement.

While an employer must prove that there are objective grounds for providing a less favourable condition of employment for a part-time employee, the Act states that in certain circumstances a ground, which may not be seen as objective for a part-time employee, may be justified as objective in terms of the conditions offered to a casual employee. It would appear that such justification could relate to the short-term nature of the casual employment relationship between the employee and employer.

For example an organisation offering a bonus scheme as part of the conditions of employment in the organisation may require all employees to have completed a 6 month probation period in order to be eligible. As a casual employee, by definition of the Act, may not reach this period of service with the organisation, it may be interpreted therefore that this might be an acceptable objective ground for not offering him/her such a condition of employment.

An "employee" is defined in the Act as a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment. It includes employees holding office under, or in the service of the state (including members of the Garda Siochana, civil servants, health board employees, harbour authority employees, or employees of a vocational education committee)

A "contract of employment" is 

1. a contract of service or apprenticeship and
2. any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within   the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

A ‘‘part-time employee’’ is an employee whose normal working hours are less than the normal hours of work of an employee who is a comparable employee in relation to him or her.

A ‘‘full-time employee’’ is an employee who is not a part-time employee.

An employee is a comparable employee in relation to part-time employee if they are employed on a full-time basis, and if:

(a) Both the employee and the relevant part-time employee are employed by the same or associated employer (and one of the conditions in the following paragraph is met) or

(b) where (a) does not apply, the full-time employee is specified in a collective agreement as a comparable employee in relation to the relevant part-time employee or

(c) where neither (a) nor (b) above applies, the full-time employee is employed in the same industry or sector of employment as the relevant part-time employee (and one of the conditions in the following paragraph is met);

A part-time employee can be compared to a full-time employee in the following circumstances:

• both the employees perform the same work under the same or similar conditions or each is inter-changeable with the other in relation to work
• where the work performed by either the part-time or full-time employee is of the same or a similar nature of the other and that any differences in either the work performed, or the conditions under which it is performed, are of insignificant importance in terms of the total work carried out or, where differences occur the irregularity is not considered significant
• the part-time employees work is equal or greater in value to the full-time employees work, taking into account the skill, physical or mental requirements, responsibility and working conditions.

The Act provides that a part-time employee, in relation to his or her conditions of employment, shall not be treated in a less favourable manner than a comparable full-time employee. A part-time employee may only be treated in a less favourable manner than a comparable full-time employee, in terms of conditions of employment, when such treatment can be justified on objective grounds. Part-time employees whose normal hours of work constitute less than 20% of the normal hours of work of a comparable full-time employee will not be entitled to pension rights. The Act states that in order to avoid doubt in terms of conditions of employment, a comparable full-time employee refers to an employee of the opposite or same sex as the part-time employee.

The level of any condition of employment that is provided to a part-time employee shall be related to the proportion, which the normal hours of work of that employee relates to the normal hours of work of a comparable full-time employee. For example while a part time and comparable full-time employee might be provided with the same hourly rate of pay the part-time employee’s pay will be less due to the proportion of hours worked in relation to the full-time employee.

As a definition of a part-time employee covers any employee whose hours of work are less than the normal hours of work of a comparable full-time employee the annual leave entitlement of a part-time employee may be calculated using the three different formulas provided by the Organisation of Working Time Act, 1997 as follows:

(a) Employees working at least 1,365 hours in a leave year will be entitled to 4 working weeks’ annual leave entitlement eg an employee works Monday-Thursday 9.00am to 5pm (less one hour per day for lunch) = 28 hours per week. 28 x 52 = 1,456 hours worked in the leave year therefore employee entitled to 4 weeks/16 days annual leave

(b) Employees working at least 117 hours per month will have an entitlement to 1/3rd of their working week as annual leave entitlement

(c) All other employees working less hours than a or b above will be entitled to 8% of the hours worked as their annual leave entitlement.

There is an exemption outlined in the Act in terms of pension contributions for part-time employees which states that an employer is not required to provide a part-time employee who works less than 20 per cent of the normal hours of a comparable full-time employee, with access to a pension scheme or arrangement as part of his/her conditions of employment.

The Act states that an employer may only treat a part-time employee in a less favourable manner than a full-time employee if such treatment can be justified on objective grounds. This means that any attempt on behalf of the employer to treat a part-time employee less favourably than a full-time employee must be based on a consideration other than the fact that the employee is employed on a part-time basis. Any less favourable treatment of a part-time employee, that is providing the part-time employee with different conditions of employment to those of a comparable full-time employee, may only be justified by the employer where it can be proved that it is for the purpose of achieving a legitimate business objective.

As mentioned above the only exception that exists under the Act is in relation to pension entitlements of certain part-time employees. That is, if the part-time employee works less than 20% of the normal hours of the comparable full-time employee, the employer is not obliged to provide the employee with a pension scheme or arrangement. This does not however, prevent an employer from providing such part-time employees with access to the organisation pension scheme or arrangement where the pension provider permits.

An employer does not have to provide his/her employees with access to part-time work under the Act.

However it states that an employer should consider requests by employees to transfer from full-time to part-time work and vice versa. Employers should also provide information on the availability of full-time and part time positions to enable employees the opportunity to transfer from full-time to part-time work and vice versa. In considering applications from employees to transfer from full-time to part-time work employers may need to conduct a job evaluation in order to assess if the role can be carried out either on a part-time or job-sharing basis. Case law has shown that, in situations where employers have refused such requests, an employee may be in a position to take a case under equality legislation claiming that the employer’s refusal was discriminatory based on the gender or marital status of the employee, or any of the nine grounds prohibited. Because of this, employers need to be able to prove that the decision not to allow the employee to carry out his/her job on a part-time basis was due to business reasons not related to the status of the employee.

The Code of Practice on Access to Part-time Work aims to:

• encourage best practice and conformity with the provisions of the Employment Equality Acts 1998-2015 and the Protection of Employees (Part-Time Work) Act 2001
• promote the development of policies and procedures to assist employers, employees and their representatives, as appropriate, to improve access to part-time work for those employees who wish to work on a part-time basis
• promote discussion and encourage employers, employees and their representatives, as appropriate, to consider part-time work and to address any barriers that may exist
• stimulate employers - where consistent with business requirements - to provide wider access to part-time work options
• provide a framework and practical guidance on procedures for accessing part-time work
• inform those who are interested in part-time work.

With regard to requests to transfer from full-time to part-time work, it recommends that employers consider the following relevant factors when making a decision:

• the personal and family needs of the applicant
• the number of employees already availing of part-time work
• additional resources required to meet part-time cover and other business/operational needs of the organisation and implications of same
• the urgency of the request
• the period of time covered by the request
• the employee’s legal rights and entitlements
• the equal opportunities policy of the organisation
• how the applicant’s proposed revised hours will fit with the tasks of his/her job and how these tasks will be performed during the period of part-time work
• the implications, if any, for the applicant’s conditions of employment
• the effect, if any, on the staffing needs of the organisation
• procedure for reviewing the arrangement.

Requests should be dealt with within a reasonable timeframe and the employee should be informed of the decision. If the request was successful, the employer should discuss the new arrangements with the employee. If it was not successful, the employee should be informed and permitted to appeal, for example, by raising a grievance.

Under the Act an employer cannot penalise an employee if an employee exercises his/her right not to be treated in a less favourable manner than a comparable full-time employee. An employer could be said to have penalised an employee if he/she has:

• dismissed the employee
• made an unfavourable change in the part-time employee’s conditions of employment
• has treated the part-time employee unfairly, including selection for redundancy
• carried out any other action which is prejudicial to the employment of the part-time employee.

There is an exception under the Act where an employer takes action against an employee who refuses a request to transfer from full-time to part-time work and vice versa. Such action will not be considered a penalisation of the employee where the employer is able to prove that there were substantial grounds, both to justify the employer’s request and also the subsequent action as a result of the employee’s refusal, and also that the taking of this action is in line with the employee’s contract of employment or any employment legislation.

A part-time employee has protection under unfair dismissals legislation once he/she has one year’s continuous service with an employer. Alternatively part-time employees with one year’s service may seek redress for an unfair dismissal under the Protection of Employees (Part-Time Work) Act, 2001. A part-time employee cannot seek relief in respect of his/her dismissal under both the Protection of Employees (Part-Time Work) Act, 2001 and Unfair Dismissals Acts, 1977-2015. In the event that a part-time employee has less than one year’s service he/she may have redress for an unfair dismissal by referring a case to the Workplace Relations Commission under the Protection of Employees (Part-Time Work) Act, 2001.