Part time workers - less favourable treatment

In the UK, part time workers can bring a claim for less favourable treatment on the grounds of their part time status, subject to the employer being able to show the treatment was objectively justified. In order to bring such a claim, the part time worker must identify a full time comparator who, amongst other conditions, does the same or broadly similar work. A recent Employment Appeal Tribunal (EAT) decision (Moultrie and others v Ministry of Justice) indicates that even if a high proportion of the work done by a full time employee is the same as the part time employee, they may not be a valid comparator.

In this case, the claimants were fee-paid medical members of various tribunals. They brought claims as they were not eligible to participate in a pension scheme that the full time regional medical members were entitled to. The fee paid members argued that the regional members were valid comparators as both groups spent most of their time on identical tasks. 100% of the fee paid members’ time and 85% of the regional members’ time was spent sitting in tribunal. However, the EAT agreed with the Tribunal who found that the other 15% of the regional members time (spent doing appraisals, recruitment, training and other delegated tasks) was of such importance that the work actually done overall by the two groups could not be considered to be the same or broadly similar. The regional members were therefore not appropriate comparators and there was no need to consider if the lack of pension rights for the fee paid members was objectively justified.

On its facts, this case could have gone either way. Other case law on this point has held that if a large component of the work is exactly the same, but the full timers do extra duties which fill the balance of their time, this should not prevent the work being regarded as the broadly similar overall.

Employers should be aware that treating part timers less favourably than full timers doing broadly similar work does risk a claim.

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