According to the National Office of Statistics, as of August 2018, there were just over 8.5 million part time workers in the UK, With just over 6.2 million being women. This is compared to 8.27 million people working part-time in August 2015, demonstrating a steady increase in the number of people wanted to work part-time.
Accordingly, it is important that both employers and employees are aware of the rights to request part-time working and the rights which protect part-time workers.
What is part-time working?
Part-time working is where a worker works fewer hours than a full-time worker. Sound straightforward? It is. However, there is no statutory definition of how many hours a worker must work per week to be deemed full time. Generally if a worker works more than 35 hours per week then they are full time although this will vary from employer to employer.
What are the benefits?
From a worker’s perspective, the benefits are often associated with the ability to balance work with childcare responsibilities. However, part-time working can also reduce stress levels and allow an individual to have a more balanced work/life.
The benefits to employers range from retaining staff who may otherwise stop work if required to work full time, fewer costs, a diverse workforce, the ability to bring in more workers at times to assist with an overflow of work when there may not be a requirement for a full-time worker.
Can a full-time employee apply to work part-time?
There are many jobs which are advertised as being part-time and therefore, anyone with the requisite skills for the role can apply.
If an employee is working full time but wishes to work part-time, they can apply to do this by:
a) Informally asking their employer; or
b) Making what is known as a Flexible Working Application.
Option b) is only available to employees (not workers) who have at least 26 weeks continuous service with the employer. An employee is also only permitted to make one flexible working application every 12 months, regardless of the outcome of the request.
In order to make a flexible working application, an employee may be able to refer to the employer’s flexible working policy if they have one. In brief terms, an employee must:
- Make the application in writing.
- Date the application
- State that they are making a flexible working request under the statutory procedure.
- Specify the change that they are requesting and when they wish the change to take effect.
- Explain what effect, if any, they think the change would have on the employer and how any such effect could be dealt with.
- State whether they have previously made an application and, if so, when.
It should be noted that the flexible working procedure does not just apply to those who wish to work part-time. It can also be used for employees who wish to request other changes to their working arrangements, for example, working different times, working from home and so on.
How should an employer consider an application for part-time working?
An employer must deal with the application in a reasonable manner and notify the employee of its decision within three months beginning with the date on which the employee's request is made or such longer period as the parties may agree.
ACAS have published a code and a guide on how employers should deal with requests in a reasonable manner. This includes the following best practice guidance:
- The employer should meet with the employee as soon as possible after receiving their written request, unless the employer intends to approve the request, in which case a meeting will not be necessary
- The employer should allow the employee to be accompanied by a work colleague at this meeting, and at any appeal. The employee should be informed of this beforehand
- The employer should discuss the request with the employee as this will enable it to get a better idea of the changes the employee is looking for and how those might benefit both the employee and the employer's business
- The employer should consider the request carefully, looking at the benefits of the requested changes for the employee and the employer's business and weighing these against any adverse business impact of implementing them. The employer must not discriminate unlawfully against the employee.
- Once the employer has made its decision it must inform the employee as soon as possible and should do so in writing so as to avoid future confusion over what was decided.
- If the employer accepts the request, or does so with modifications, the employer should discuss how and when the changes might best be implemented with the employee.
- If the employer refuses the request it may only do so for one or more of the reasons set out in the legislation.
- If the request is refused, the employer should allow the employee to appeal the decision.
- All requests and any appeals must be considered and decided on within the three-month decision period unless the employer and employee agree to extend it.
- When the employer arranges a meeting to discuss an employee's request, including an appeal, and the employee fails to attend this and a rearranged meeting without a good reason, the employer may treat the request as withdrawn in which case it must inform the employee of that decision.
What if the employer accepts the request for part-time working?
Any change to an employee’s working hours will be a permanent change to their contract (unless under a trial period - see below). Accordingly, the employer should ensure they confirm in writing the changes to the employee’s terms and conditions within one month of the change taking effect.
It may be that the employer accepts the application but with a variation in which case, that should also be confirmed in writing.
What if an employer is unsure whether to accept the request for part-time working?
An employer might want to give consideration to agreeing a trial period with the employee. There is nothing within the legislation regarding trial periods but this could be agreed between the employer and employee. If a trial period is agreed, the terms relating to the trial period should be clearly set out in writing along with the date on which this will be reviewed.
It may also mean that the employee/employer need to agree an extension of time under which the decision is to be made on the application if the trial cannot be completed within the three-month deadline.
What if the employee does not want to agree to part-time working?
There is no right within the legislation for an employee to be allowed to work part-time. However, if the employer wishes to decline a flexible working application, they are only permitted to do so for one or more of eight reasons as follows:
- The burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
What risks are there with declining a request for part-time working?
As stated above, there is no legal right for an employee to be allowed to work part-time.
However, a refusal could give rise to a risk of other claims such as a discrimination claim.
For example, an indirect sex discrimination claim whereby a woman whose application is declined alleges that the policy to not allow part-time working this places women at a disadvantage (as it is generally accepted that more women than men have primary childcare responsibilities which affect their ability to work full-time). Alternatively, an employee may claim disability discrimination if they are disabled and part-time working was requested as a reasonable adjustment.
An employee can also bring a claim if the employer has failed to follow the statutory procedure, including a failure to deal with the application in a reasonable manner or rejecting the request for a reason other than one of the eight prescribed reasons.
What rights does a part-time employee have?
Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 protect part-time workers being treated less favourably by an employer in comparison to a full-time worker:
- In relation to the terms of their contract; or
- By being subjected to any other detriment by any act, or deliberate failure to act;
- By being dismissed.
This means that part-time workers should receive the same benefits, training, holidays (albeit pro-rata) and be subject to the same policies and procedures of full-time workers.
However, an employer can defend any claim of less favourable treatment either on the basis that the treatment is not on the ground that they are a part-time worker or because the treatment is justified on objective grounds. This means the employer would have to show that the treatment is necessary in order to achieve that objective and is an appropriate way of achieving that objective.
What are the top tips for part-time working?
Flexible working applications are one of the rare pieces of legislation where first come first service does apply. If one employee works part-time, that does not mean an employer has to agree to another employee working part-time. The very fact one employee already has such an arrangement may mean it cannot be extended to another employee. Employers must be mindful of any potential discrimination claim when taking this approach.
Employers should also review all terms and conditions, including non-contractual benefits and identify whether there are any terms offered to full-time workers which are not offered to part-time workers. If there are any, an employer must consider why and whether this difference can be justified.
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