Changing from full to part time hours – protection against less favourable treatment
If you work full-time, you don’t have the right to switch to part-time or vice versa, your employer needs to agree (see our pages on Flexible working).
If you do change from full to part time hours, you should not be treated less favourably either in the benefits you receive or your pay (you should receive pay at the same rate per hour). More generally, you should not be treated in a less favourable manner, for instance relating to training and career development, than full time workers just because you work part-time. But the pro rata principle must be applied (unless it is inappropriate), and remember that your employer might be able justify a less favourable treatment if they have a legitimate objective, and the treatment is both necessary in order to achieve that objective and an appropriate way of achieving that objective.
If you are moving from a full time contract to part time hours, then you are protected under the Part Time Workers Regulations from less favourable treatment. You should compare yourself with another worker employed by the same employer under the same type of contract and engaged in broadly similar work (with a similar level of qualifications, skills and experience) working full time.
A different type of contract means that if you’re a worker, you can’t compare yourself with someone who is an employee. But if you’re a zero-hours or a fixed-term part-time employee, you can compare yourself to a full time employee. Fixed-term and part-time contracts are not considered to be a different “type” from permanent contracts.
You have a right not to be treated less favourably as regards the terms of your contract and you should receive no less than the pro-rata the pay you would get as a full time worker. However, there are special rules on overtime working, and remember that an employer may be able to justify the less favourable treatment if it is necessary and appropriate.
If you think that you are not being treated fairly, write to your employer requesting a written statement of reasons for less favourable treatment. You should receive it within 21 days of the request (regulation 6(1), PTW Regulations).If you are not satisfied, you can complain to an employment tribunal within three months of the change of contract. An employment tribunal can make a declaration, order the employer to pay compensation, or recommend that the employer takes further action.
First, if you use your right to request flexible working after maternity leave, that is to change only your days/hours/place of work but should not result in a change to the other terms and conditions of your contract.
However, many employers will refuse a flexible working request and offer alternative jobs on a part time basis to women returning from maternity leave.
If you worked full time before your maternity leave and you are returning either to the same job but part time, or a job at the same level but on a part time basis and you return after less than 12 months’ absence you may be able to use the Part Time Workers Regulations to argue that you should have no less favourable terms than before.
Under regulation 4 of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Full-time Worker Returning to Part-time Work After Period of Absence) a previously full time worker can compare their new terms and conditions with those that they enjoyed immediately before the change. This regulation allows women to compare their part time roles with their own (not a comparator’s) previous full time role and argue that they should not be treated less favourably because of their part time status. Any standard change, for instance a pay increase, that have occurred during the period of their absence, must be also applied to you on your return on a pro-rata basis.
This only applies for a less than 12 months’ absence, although a period of annual leave at the end of maternity leave should be discounted (Fidessa v Lancaster).
You should not be selected for redundancy (or otherwise be treated less favourably) just because you work part-time, unless your employer can justify this on objective grounds. The justification needs to have a legitimate objective and be necessary and proportionate.
If your employer goes through redundancy, they must put in the selection pool all affected employees. That includes all employees doing the same job – whether or not part-time or full time. The reason for selecting you should not be because you’re working part-time.
In Hendrickson, Mrs Pipe was one of 4 accounting assistants, working part-time and by far the most qualified. The employer had decided that they needed only 3 full time accounting assistants and Mrs Pipe refused to switch to full time – though she agreed to increase her hours to 32.5h. She was therefore dismissed, the employer claiming it was a fair redundancy. The EAT found that the reason she was dismissed was because she refused to work 37.5 hours (instead of 32.5) and was unjustified and therefore unfair. The company put no adequate reason as to why each of the 3 remaining posts had to be full-time and it was clear that they had completely ignored Mrs Pipe’s offer to increase her hours to 32.5 per week.
However, every case is fact specific, and had the employer in this case put all four posts at risk and been able to justify the full time working requirement, then a different decision may have been reached.