Recent legislation in the UK has seen the introduction and development of the so-called "family-friendly policies", designed to enable workers to balance the demands of family life and work. The Employment Rights Act 1996 introduced the right to take time off in an emergency to care for a dependent, the right of parental leave and extended maternity rights.
The Employment Bill 2002 which is currently wending its way through Parliament will introduce the right to paid paternity leave and will extend many new rights to adoptive parents.
It is interesting to note, however, that the right to work part-time, surely one of the most family-friendly policies of all, has yet to be enshrined in law. The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2001 (SI 2000/1551) enables part-time workers to claim equal treatment with their full-time colleagues. As a result, a part-timer is entitled to receive on a pro-rata basis the same pay and benefits as a full-timer doing the same or essentially the same job.
Crucially, however, the Regulations do not confer on a worker a positive legal right to work part-time. The Department for Trade & Industry ("DTI") has published guidelines for employers, "The Law and Best Practice - a detailed Guide for Employers and Part-Timers", which recommends that an employer, when faced with a request by a worker to reduce his/her hours, should give genuine consideration to the request and should only refuse it for sound business reasons. Employers should also establish procedures for handling a request to work part-time. These guidelines, however, have no legal force.
The current Employment Bill will give a legal basis to this "request/consider" procedure. From April 2003 (when it is anticipated that the Bill will become law) an employer will have to give "serious" consideration to a request from any parent of a child under the age of six to work part-time and give "clear business reasons" for refusal. This does not by any means establish a legal right to work part-time although an unreasonable refusal could result in a Tribunal claim. The Tribunal will look at the procedure adopted by the company, consider whether the employee has been given an adequate explanation of the reason(s) for refusal and whether or not those reasons do justify refusal. The Tribunal can send the claim back to the employer to reconsider its refusal and will be able to award compensation. This route will doubtless be used more by male than female employees, as female employees will be more likely to be in a position to claim sex discrimination.
A female employee whose request to work part-time is unreasonably refused will be able, therefore, to bring a claim not only for unfair dismissal (under the new Act) but, in certain circumstances, for sex discrimination as well. More specifically, her claim will be for indirect sex discrimination, ie, the employer has a "provision criterion or practice" to work full-time which applies equally to male and female employees but with which a considerably smaller proportion of one sex than the other can comply. Further, this requirement is not "appropriate, necessary and objectively justified" and is one which is to the employee's detriment. Since a larger proportion of employed women than employed men work part-time, an employer's requirement for full-time work may constitute indirect sex discrimination unless such a requirement can be justified. This type of claim is therefore used by female employees, frequently on return from maternity leave.
Each case, as the old saying goes, turns on its own facts. In one case (Abbey Textiles Limited -v- Burgess, EAT 1265/97), a female machinist asked to go part-time following her return to work from maternity leave. Her employer took the view that if she was a member of a team, part-time work would not be possible. The Tribunal which heard the case in the first instance decided that the employer's defence of justification was not well founded. Ms Burgess could operate all the machines used by the team, no regular team meetings were held and, in the event that she did miss a meeting, she could easily have been briefed by a colleague. The Employment Appeal Tribunal (EAT) upheld the Tribunal's decision.
By contrast, in Ely -v- Huntleigh Diagnostics Limited (EAT 1441/96), the Applicant's job as a Receptionist was held by the Tribunal (and later the EAT) to be one which could not be properly performed on a part-time basis as it was inextricably tied in with the hours worked by the sales team which she supported. As the sales team worked full-time, her job could not be done on a part-time basis.
More recently, in an unreported case, a male car mechanic won his Tribunal claim for sex discrimination. His request to work part-time in order to care for his children was refused by the employer, although the company regularly allowed women to work part-time for that same reason. The Tribunal did not accept the argument that his job could not be performed on a part-time basis. In fact, his claim was for direct sex discrimination as "but for" the fact that he was a man, his request to work part-time would have been granted.
In these cases, where sex discrimination is found, the legal remedy is almost always by way of a monetary award consisting of a basic award, a compensatory award and a possible award for injury to feelings. Reinstatement or re-engagement are possible remedies, but they are almost never ordered. Indeed, in these cases, reinstatement would not be appropriate as it would effectively put the employee back in his/her previous full-time job. In any event, an employer can refuse to obey an order for reinstatement or re-engagement, the penalty being that the employee receives an additional award of between 26 and 52 weeks' pay.
The Tribunal does not have the power to force an employer to take back an employee as contracts of employment are not subject to the rule of specific performance. It is for that reason that an injunction would not be an available remedy in a UK Court in these circumstances. An employer cannot be ordered to employ an individual and nor can an employee be forced to work for an employer. Monetary damages are the legal remedy in cases of sex discrimination and such damages are not limited to the current unfair dismissal compensatory award of £52,600, but are uncapped.
If the present Government continues to extend employment protection in this area, it is possible that the right to work part-time could be introduced. However, such a proposal would meet considerable resistance from employers throughout the country who feel that the damage to business would far outweigh any benefit to families.
This is a commentary to update those involved in regulated banking, investment, or corporate activities, on important developments affecting them. Since this is a quick reference facility, it is not a substitute for obtaining specific professional advice.
