Prevention of less favourable treatment

As any business owner knows, your employees are one of the most valuable assets your business has. Without them, operations would likely grind to a halt.

Which is why treating them fairly and giving them the right treatment is so important. Not only to improve your staff retention rates but also to create a positive workplace culture.

And while it’s nice to be a good and fair employer, it is also your legal responsibility. Introducing, the Prevention of Less Favourable Treatment Regulations. Both acts from 2000 and 2002 ensure that workers on different types of contracts, part-time and fixed-term contracts, aren’t treated less favourably when compared to a comparator.

What is a comparator?

A comparator, for a part-time employee is the comparable full-time employee, i.e. the employee’s full-time equivalent. This can be an employee who works under the same or similar job role, performing tasks of the same or similar nature, and can be of either sex or gender.

For a fixed-term employee, the comparator is slightly different and has to be someone employee on a permanent contract by same employer carrying out same or similar work

By comparing a part-time worker or fixed-term employee to a comparator, you can determine whether the employee is disadvantaged in their role. For example, if their pay is not the equivalent of the full-time employee, or they do not receive the same benefits.

Part-time workers' rights

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 states that part time workers should not be treated any less favourably than a full-time member of your staff.

This includes when considering areas of their employment such as:

• Pay

• Pension

• Training opportunities

• Types of leave

• Other employee benefits

• Redundancy procedures and pay

For example, a part-time employee must be paid on a pro-rata basis according to the salary of the full-time employee working in the same role (a full-time comparator). You may have seen job descriptions describing exactly this. Often by using the acronym ‘FTE’ (full-time equivalent).

To get this right, you can simplify your payroll calculations with payroll software. Completing calculations for you, ensuring that these are compliant with current legislation and HMRC.

Indirect sex discrimination

In some circumstances, the less favourable treatment of part-time works can also be considered indirect sex discrimination. This is because, typically, part-time workers are more likely to be women.

As well as being protected by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time workers will always have the same rights under the Equality Act 2010 as their full-time counterparts.

This law requires employers to provide equal pay to men and women in the same role, under the same employment. As this is a law, businesses reported and found to be discriminating based on sex may face hefty fines, employment tribunals and massive reputational damage to their business.

Fixed-Term regulations

The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 came into force just two years after the regulations for part-time workers, with the aim of protecting employees on fixed-term contracts from less favourable treatment. Much like the regulations for part-time workers, the 2002 regulations apply to pay, benefits, pension, leave, and:

• Right to be informed of vacancies so they can secure permanent employment and

• Right to be regarded as an employed permanently where they have been continuously employed on successive fixed term contracts for four years.

Fixed-term employees are those hired for a set period, rather than being given a permanent contract. No matter for what purpose this may be, these employees must not be treated less favourably on this basis.  

Is it ever okay to treat part-time or fixed-term employees differently?

The law states that fixed-term employees and part-time employees must always be treated fairly, unless the change or difference in treatment can be objectively justified. Employers who are found not to be adhering to the law could face being taken to an employment tribunal by an employee, unless they can justify this was:

• To achieve a legitimate aim or business objective

• A necessary and appropriate way to achieve this objective

What happens when less favourable treatment has occurred?

If an employee feels they have been less favourably treated by their employer, they can request a written statement of reasons for less favourable treatment where the employer must respond in 21 days.

The employee can also claim automatic unfair dismissal if dismissed for exercising their rights under these regulations.

Upon opening a case, they may begin a grievance procedure and even seek legal advice in order to take this to case to an employment tribunal.

The best way to avoid finding yourself in this situation is to acknowledge the regulations in place, familiarise yourself with the details and ensure that you follow best practices when it comes to hiring staff on different types of contracts.

Get help from employment law experts

If you need immediate employment law advice, with BrightAdvice, our employment law and HR experts are available on our 24/7 phone line. Give them a call to discuss your concerns or for answers to any of your questions.