As Ireland’s economy continues to pick up, more and more small businesses are looking to grow and hire new staff. Many do not yet have the budget to recruit someone on a full-time basis, so are appointing people to part-time roles. However, there are a couple of things, from a human resources perspective, business owners hiring part-time staff should be aware of, which we’ll aim to clear up in this blog.
As a result of the large number of employees working part time in Ireland the Protection of Employees (Part-Time Work) Act 2001 was introduced primarily to ensure that part-time employees were not discriminated against in comparison to a full-time employee and generally to bring improvements to the status and rights of part-time employees.
1) Who does the Act apply to?
The Act applies to any part-time employee who is under a contract of employment or apprenticeship, or employed through an employment agency.
2) What is a Part-Time Employee?
A part-time employee is an employee whose normal working hours are less than the number of hours worked by a comparable employee. A part-time employee no longer has to have 13 weeks continuous service and no longer has to work a minimum of 8 hours per week to be covered by the Act. It is worth noting however that for the purposes of entitlement under unfair dismissals or redundancy legislation applies that the part-time employee must have the required continuous service of 12 months to accrue rights.
3) What does the Act actually do?
The Act confirms that a part-time employee cannot be treated less favourably than a comparable full-time employee in respect of pay and terms and conditions of employment. These conditions are both statutory rights such as the right to Maternity Leave, Adoptive Leave, holidays, etc. and contractual such as sick leave, health insurance, bonus schemes etc.
4) What is a comparable full-time employee?
An employee is a full-time employee when both employees work for the same employer and fulfils one of the following criteria:
5) Can a part-time employee be treated less favourably than a full-time employee?
A part-time employee can be treated less favourably than a comparable full-time employee where such treatment can be justified in two circumstances:
6) What are "Objective grounds" for less favourable treatment?
"Objective grounds" for treating a part-time employee less favourably than a comparable full-time employee are based on considerations other than the status of the employee as a part-time employee. These grounds occur where the less favourable treatment is necessary for the purpose of achieving a legitimate objective of the employer. As with a lot of these ‘objective tests’ it is not always clear what is or is not objective. One case heard by a rights commissioner that examined whether an employer had an objective ground to treat part-time employees less favourably than full time employees was:
Cahill May Roberts – and – Rachel O’Leary where the employer claimed that Ms O’Leary’s job was not the same as the comparator and therefore it was justified in paying Ms. O’Leary a lesser rate of pay. However the Labour Court, after carrying out a work inspection to determine if the claimant and the named comparator performed like work, found that the comparator had no formal title that would distinguish her from her fellow workers in the warehouse and that both the comparator and the claimant were engaged in the same or similar work and awarded back pay to 1 of January 2003 plus €500 compensation.
7) What about Pensions?
A part-time employee who normally works less than 20 per cent of the normal hours of the comparable full-time employee can be treated in a less favourable manner with regard to a pension scheme or arrangement. However, this provision does not prevent an employer and a part-time employee from entering into an agreement whereby the part-time employee receives the same pension benefits as a comparable full-time employee.
8) Are Part-time workers entitled to overtime?
Part-time workers are entitled to overtime if the full-time employee to which they compare themselves is paid overtime after working his/her maximum hours per week.
In order to claim overtime however, an employer can determine that part-time employees must work the same number of hours as a full-time employee before they can claim overtime.
9) Does an employer have to grant access to part-time work?
Whilst an employer is not obliged to provide access to part-time work to his or her employees the Government published a Code of Practice on Access to Part-Time Working in 2006 that encourages employers and employees to consider part-time work.
10) What grounds will be deemed to be penalisation of part-time employees?
An employer cannot penalise a part-time employee on the grounds that:
11) Are there circumstances where an employer can penalise an employee?
Employers may refuse a request by the employee to transfer from full-time work to part-time work (or vice versa) when the following conditions are met:
Clearly the implications of agreeing to or requesting an employee to work part-time has significant implications for both the employer and the employee. Whilst there are clear benefits to both parties in such an arrangement employers should be aware of their obligations and the part-time employees rights in such an arrangement.
The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.
As a result of the large number of employees working part time in Ireland the Protection of Employees (Part-Time Work) Act 2001 was introduced primarily to ensure that part-time employees were not discriminated against in comparison to a full-time employee and generally to bring improvements to the status and rights of part-time employees.
1) Who does the Act apply to?
The Act applies to any part-time employee who is under a contract of employment or apprenticeship, or employed through an employment agency.
2) What is a Part-Time Employee?
A part-time employee is an employee whose normal working hours are less than the number of hours worked by a comparable employee. A part-time employee no longer has to have 13 weeks continuous service and no longer has to work a minimum of 8 hours per week to be covered by the Act. It is worth noting however that for the purposes of entitlement under unfair dismissals or redundancy legislation applies that the part-time employee must have the required continuous service of 12 months to accrue rights.
3) What does the Act actually do?
The Act confirms that a part-time employee cannot be treated less favourably than a comparable full-time employee in respect of pay and terms and conditions of employment. These conditions are both statutory rights such as the right to Maternity Leave, Adoptive Leave, holidays, etc. and contractual such as sick leave, health insurance, bonus schemes etc.
4) What is a comparable full-time employee?
An employee is a full-time employee when both employees work for the same employer and fulfils one of the following criteria:
- The part-time employee performs the same work as the full-time employee under the same or similar conditions (or both workers are interchangeable with the other in relation to the work).
- The work performed by one of the employees is of the same or a similar nature to that performed by the other employee and where any differences between the work performed or the conditions under which it is performed by each employee are either of little importance in relation to the work as a whole, or occur so irregularly as not to be insignificant;
- The work performed by the part-time employee is equal or greater in value in terms of skill, responsibility or working conditions
5) Can a part-time employee be treated less favourably than a full-time employee?
A part-time employee can be treated less favourably than a comparable full-time employee where such treatment can be justified in two circumstances:
- Where the part-time employee's less favourable treatment can be justified on "objective grounds"; and
- The provision of pensions.
6) What are "Objective grounds" for less favourable treatment?
"Objective grounds" for treating a part-time employee less favourably than a comparable full-time employee are based on considerations other than the status of the employee as a part-time employee. These grounds occur where the less favourable treatment is necessary for the purpose of achieving a legitimate objective of the employer. As with a lot of these ‘objective tests’ it is not always clear what is or is not objective. One case heard by a rights commissioner that examined whether an employer had an objective ground to treat part-time employees less favourably than full time employees was:
Cahill May Roberts – and – Rachel O’Leary where the employer claimed that Ms O’Leary’s job was not the same as the comparator and therefore it was justified in paying Ms. O’Leary a lesser rate of pay. However the Labour Court, after carrying out a work inspection to determine if the claimant and the named comparator performed like work, found that the comparator had no formal title that would distinguish her from her fellow workers in the warehouse and that both the comparator and the claimant were engaged in the same or similar work and awarded back pay to 1 of January 2003 plus €500 compensation.
7) What about Pensions?
A part-time employee who normally works less than 20 per cent of the normal hours of the comparable full-time employee can be treated in a less favourable manner with regard to a pension scheme or arrangement. However, this provision does not prevent an employer and a part-time employee from entering into an agreement whereby the part-time employee receives the same pension benefits as a comparable full-time employee.
8) Are Part-time workers entitled to overtime?
Part-time workers are entitled to overtime if the full-time employee to which they compare themselves is paid overtime after working his/her maximum hours per week.
In order to claim overtime however, an employer can determine that part-time employees must work the same number of hours as a full-time employee before they can claim overtime.
9) Does an employer have to grant access to part-time work?
Whilst an employer is not obliged to provide access to part-time work to his or her employees the Government published a Code of Practice on Access to Part-Time Working in 2006 that encourages employers and employees to consider part-time work.
10) What grounds will be deemed to be penalisation of part-time employees?
An employer cannot penalise a part-time employee on the grounds that:
- The employee exercised his/her right not to be treated in a less favourable manner than a comparable full-time employee in relation to conditions of employment;
- The employee, in good faith, opposed an act that is unlawful under the Protection of Employees (Part-Time Work) Act
- The employee refused to accede to a request by the employer to transfer from performing part-time work to performing full-time work or vice versa
11) Are there circumstances where an employer can penalise an employee?
Employers may refuse a request by the employee to transfer from full-time work to part-time work (or vice versa) when the following conditions are met:
- The employer must have substantial grounds both to justify the making of the request and for taking any action after the employee's refusal to transfer from full-time work to part-time work or vice versa
- The taking of the action is in accordance with the employee's contract of employment and the provisions of employment rights legislation.
Clearly the implications of agreeing to or requesting an employee to work part-time has significant implications for both the employer and the employee. Whilst there are clear benefits to both parties in such an arrangement employers should be aware of their obligations and the part-time employees rights in such an arrangement.
The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.
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