This week, Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise employers on statutory leave entitlement issues for part-time and job share workers.
The question:
The employee (employee 1) has a job share role where she does Monday through Wednesday, has less than one year service, and has signed a contract giving her all statutory holidays plus 11 days per annum annual leave.
The job share partner (employee 2) does Wednesday through Friday, has less than one year service and has signed a very similar contract. Employee 2 has now complained that employee 1 receives more paid days off since most of the statutory holidays fall on a Monday.
As a consequence the employer is using the new legislation as the reason why they are asking employee 1 to sign a new contract. The new contract states that employee 1 must apply to take off any of the statutory holiday and it will come off of the annual leave entitlement.
In light of the statutory changes to annual leave entitlements and contract law, how would you propose this situation be handled by both the employer AND employee 1?
Legal advice:
Esther Smith, partner, Thomas Eggar
Technically the current situation – whereby both employees get their annual leave entitlement and the statutory holidays that fall on their working days – does not give rise to a problem in law, so long as their holiday entitlement meets the current statutory requirements of four weeks pro rata per annum.
The fact that one part-time employee is complaining that another part-time employee is getting a better deal than them, as they get more holiday, is also not a problem in law. There is no protection against any less favourable treatment of a part-time employee when compared to another part-time employee, only when compared to a full-time employee.
Therefore in advising the employer I would say that they don’t have to change the current situation at the moment. However, if the employer wants to change the situation, the easiest way to do it is to say that as a full-time employee gets four weeks’ (20 days) holiday plus the eight bank holidays, any part-time employee should get a pro rata amount of this. So someone working three days a week should get 3/5th of the total 28 days and if a bank holiday falls on their working day they should have to use one of their day’s annual leave to cover this holiday.
It appears that this is what the employer is suggesting here to employee 1, although ideally they should be treating them both the same. This means that they both get the same amount of leave, but one of them (employee 1) gets less choice as to when she takes her leave as more bank holidays fall on her working days.
When the leave entitlement increases in October 2007, there will be no need to change their leave arrangements, as they will already be getting four weeks plus the bank holidays, pro rata.
At the end of the day you will not keep both of them happy but the above proposal is probably the simplest route. As both these employees have less than a year’s service the employer is in a pretty good position to force these changes upon them.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Martin Brewer, partner and employment law specialist, Mills and Reeve
I’m not sure I see the problem here. As the law stands the fact that a part-time worker misses out on some bank holidays because of the particular days on which he/she works does not give rise to any claim. It’s just the luck of the draw so to speak. Employee 2, in your example, has chosen to work on days to suit her. These just happen to be days on which bank holidays are less likely to fall. It’s not a matter of ‘complaint’ as you put it. It’s tough.
The Working time Regulations do allow you to include bank holidays as part of the four weeks (and the same applies to the increased leave entitlement) annual leave. So you could, in theory, go down the route you plan – to make employee 1 have a contract under which bank holidays are included as part of her holiday entitlement that she therefore has to ask for. Presumably this means that you are open on bank holidays? If not then employee 1 has part of her holidays fixed – by the bank holiday calendar.
Most importantly, if this treatment (that is requiring employee 1 to book bank holidays as part of annual leave/effectively having fixed holidays) is different from how full-time workers’ holidays are treated then you may simply be replacing one problem with another because under the new contract, employee 1 will be able to argue less favourable treatment under the Part Time Workers (prevention of Less Favourable Treatment) Regulations 2000 which requires you to treat part-time workers in the same way as comparable full-time workers unless the difference in treatment is objectively justified. I doubt, as the law stands, that the complaint by employee 2 is justification for the less favourable treatment of employee 1 in your scenario.
Martin can be contacted at: martin.brewer@mills-reeve.com
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