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The Equalisers

26th January 1995
Page 40
Page 40, 26th January 1995 — The Equalisers
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Which of the following most accurately describes the problem?

On 20 December 1999 the Government agreed to give key rights to part-time workers. This was decided after months of pressure and legislation will be introduced in the early part of 1995.

Hauliers most affected may need to reassess the perceived benefits of employing part-time workers in, for example, the traffic office, in favour of full-time workers. Until this year, it was safe to say that part-time workers offered employers the advantage of flexibility in working practices. In particular, part-time workers did not acquire statutory protection from unfair dismissal as quickly as full-time workers and employers were able to terminate part-timer's contracts far more easily.

However, in March 1994 the House of Lords decided in a test case brought by the Equal Opportunities Commission, that current UK law on part-time working indirectly discriminates against women. The Equal Opportunities Commission had persevered in bringing its case to the most senior Court in the UK after the Courts below had decided against it.

Part-time workers are defined by current UK law as those who work more than eight and less than 16 hours a week. They only acquire statutory protection such as the right to claim compensation for unfair dismissal or a redundancy payment after five years complete service, whereas full-time workers working 16 or more hours per week acquire such rights after two years service.

After considering the evidence from the Equal Opportunities Commission and the Government, the House of Lords reasoned that as 90% of Britain's five million part-time workers are women, the current law is discriminatory because it is more likely to prevent women acquiring statutory employment protection than men, and thus contravenes European law on sex discrimination and equality of pay and treatment. These laws are not connected with the Maastricht Treaty or the Social Chapter, but are long established European laws which apply to the UK.

Arguments

In its arguments before the Court, the Government appeared to accept that UK law was discriminatory, but tried to produce evidence that these laws were justified because they encouraged employers to create more jobs for part-time workers. Its arguments in this respect were rejected by the House of Lords.

Following this decision it was generally expected that changes in the law on part-time working would soon follow. However, the Government dug its heels in and said it would not change the law in the light of this position, despite the threatened wave of discrimination claims that could have followed the House of Lords decision.

The Employment Secretary Michael Portillo, argued particularly strongly against the increased regulation of the labour market by conferring full statutory protection of parttime workers. In December 1994, however, he was obliged to reverse that stance, presumably after consulting the Government's legal advisers, and announced proposed changes in the law which will probably come into effect sometime in 1995.

The precise changes in the law will not be known until the draft legislation is published. It seems likely from Michael Portillo's announcement that all attempts to limit statutory protection according to the hours worked by an employee will be abandoned. This means that part-time workers will be entitled to the following key rights regardless of how many hours they work each week: • The right to claim compensation for unfair dismissal after two years service; • A redundancy payment if made redundant after two years service; • Time off work for trade union duties and activities.

So far as statutory protection is concerned, part-time workers will therefore be put in the same position as full-time workers. It is likely that the law will provide that part-time work

ers who had completed two years service will be entitled to claim redundancy payments or compensation for unfair dismissal with immediate effect, rather than requiring them to work two further years from the date of any legislation before they acquire such rights. As parttime workers already have comparable rights as those enjoyed by full-time workers in relation to sexual or racial discrimination, the anticipated legislation will remove the last major legal distinction between part and fulltime workers.

Changes

It seems unlikely the planned changes will affect the sick pay regulations. Part-time workers earning less than £57 per week will remain without the right to sick pay from their employers. It may be that the law is challenged in the Courts on the grounds that this law contravenes European laws on sex discrimination and equality of pay and treatment, because women are more likely to be excluded from the right to sick pay.

The effect of these changes in the law will be that employers will find that part-time workers will demand equality of treatment. The right to a redundancy payment may not have a profound effect on employers in financial terms because it is unlikely that part-time workers would be entitled to substantial redundancy payments.

Of far more significance is the right to bring claims before an Industrial Tribunal. Recent years have seen a dramatic increase in the number of Industrial Tribunal claims, and employers are likely to be met by far more claims from protected part-time workers in the future. In practice, employers will have to treat part-time workers as if there were no practical difference with their full-time colleagues. If an employer seeks to terminate the employment of any part-time worker, he or she must therefore ensure that in the case of misconduct the reason for dismissal and procedure adopted are fair, or in the case of redundancy that proper consultation is carried out before any decision to dismiss is made.

In the future some employers might try and avoid the consequences of these anticipated changes by resorting to the introduction of temporary or short-term contracts to avoid part-time workers acquiring the full protection of the law. But there does not appear to have been a significant trend in this direction following the House of Lords decision in the Equal Opportunities Commission test case. It seems therefore that the overwhelming majority of employers intend to ensure that their actions and policies in relation to part-time workers accord with good industrial practice.

If they do not they will pay dearly.

F. by Simon Coates

Senior solicitor with the national firm Eversheds Ilepworth & Chadwick specialising in employment law.


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