At Work: Management - Work to rule - Bank holidays and part-time employees

Precedent suggests pro rata entitlement does not apply across the board.

Since the advent of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, employers have puzzled over whether part-time workers are entitled to benefit from bank holidays falling on days when those employees are not at work.

The Department of Trade and Industry's guidance points out that the rights of part-timers in relation to public and bank holidays may not always be clear. It states that it is not necessary to give time off in lieu to staff who would not ordinarily work on the day of a holiday. However, it also says that such a practice could disadvantage part-timers who work fixed days each week.

Following the recent decision in McMenemy v Capita Business Services (which was a Scottish case and therefore only persuasive, not binding, for English employment tribunals), it seems that any confusion has, in the main, been resolved.

McMenemy was a part-time employee who worked Wednesdays to Fridays. His employer, which provided services seven days a week, allowed people to have paid time off for bank holidays, but only if they would normally have worked on the days in question. McMenemy claimed that he was being treated less favourably than comparable full-time workers as he did not receive the benefit of public holidays falling on Mondays.

The key issue was whether the less favourable treatment was solely because of McMenemy's part-time status. The court found that the reason for his less favourable treatment was the 'accident' of him having agreed with his employer that he would not work on Mondays or Tuesdays, which could also have applied to full-time workers. His claim failed.

Any tribunal looking at why a worker does not get pro rata entitlement will have to look at how other part-timers are treated. If a part-timer who works from Monday to Wednesday is given time off for bank holidays falling on a Monday, but those who work from Wednesday to Friday are not, it will be open to a charity to argue that this proves that it is not part-time worker status that leads to less favourable treatment but merely the particular pattern that the employee works. Emma Burrows isa partner and head of the employment group at Trowers & Hamlins solicitors.

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