This time the experts, Esther Smith and Martin Brewer explain what to do about pro-rata sick pay for part time employeees.

The question: What are the pro-rata company sick pay waiting periods for part-time employees?

Our company operates an organisational sick pay scheme that entitles workers to full pay after they have been off sick for more than three days. It has been suggested that this waiting period should be adjusted pro-rata for part-time employees.

We don’t want to do anything that serves as detrimental to our part-time employees (Part-Time Workers Regulations 2000) but by the same token it has been argued we are not being fair to our full time workforce when everything else e.g. annual leave entitlement etc is pro-rated for part-timers.

I believe there are no distinctions made between full and part-time workers in the ‘waiting period’ for SSP. Should we simply apply the same principle? Any advice or shared experience on developing policy on this point would be much appreciated. 

Legal advice:
 

Martin Brewer, partner, Mills & Reeve
 

I think that the question posed to you: should the waiting period for company sick pay be adjusted pro-rata for part-time employees, indicates a fundamental misunderstanding of the law. The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW) requires that part time workers are not treated less favourably than a comparable full time worker, it does not require them to be treated more favourably. It’s worth looking at a situation which is, to some degree, analogous, overtime pay.

If you have a full timer working 40 hours per week and a part timer working 20 hours per week and time and a half for overtime pay, is it less favourable treatment of the part timer only to pay them the overtime rate when they have worked 40 hours or should they be entitled to the overtime rate once they have worked 20 hours?  
It seems counter intuitive but the correct answer is that the 40 hour threshold is correct. It is not less favourable treatment of a part timer to require them to work 40 hours a week before they get the overtime rate. This follows the decision in the European Court of Justice (ECJ) in a case called Stadt Lengerich v Helmig (1995) and is now contained in regulation 5(4) (PTW). 

The reasoning is simply this- Imagine person A, who normally works 40 hours a week, does not get time and a half until they work for those 40 hours. They work 60 hours in one week. So for the first 20 hours they receive normal pay, they receive normal pay for the second 20 hours and they receive time and a half for the remaining 20 hours. Now imagine person B, who normally works 20 hours a week and who also does a 60 hour week. They too receive normal pay for the first 20 hours, they receive normal pay for the second 20 hours and they receive time and a half for the remaining 20 hours. That is the same treatment as person A, not less favourable treatment. To give person B, the part timer, overtime pay after 20 hours would be more favourable treatment.

Thus with your waiting time. Person A, the full timer, waits 3 days before receiving sick pay. Person B, the part timer, also waits 3 days. This is the same treatment, not less favourable treatment of person B.
 

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 

You should be pro rating the “waiting days” under your sickness scheme to ensure fairness for the part time employees. If a full timer is expected to wait 3/5ths of their working week for sick pay to kick the same should apply to a part timer.

In relation to SSP, the operation of the statutory scheme does operate slightly differently as the waiting days under the SSP scheme are “qualifying days” which are expressed as being days when the employee would work, and therefore does not differentiate between part time and full time employees.

However, this is a statutory provision, and just because your scheme may mirror this does not mean you would be protected against a claim from a part time employee.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.