You have enquired as to whether you are entitled to SMP if your contract is not renewed. ...read more
I have worked for a company for 6+ years part doing a 30-hour week. The co-workers in my department work various full-time hours, some work a 35-hour week whilst others work a 40-hour week. I receive full bank holiday entitlement as I work Mon-Fri the same as my co-workers. When calculating my bank holiday entitlement they work it out on a pro rata basis against the 35-hour week. However, when calculating my bonus they pro rata my bonus against a 40-hour week meaning I get 3/4 of the standard bonus. Should they not use either the 35 full-time weekly hours or the 40 full-time weekly hours for both? Also if it should be worked on the 40-hour week why do the staff who only work 35 hours per week not have their bonus pro rata’d against the staff working 40 hours per week?
I note that you have worked for your employer for over 6 years on a ‘part-time’ contract working a 30-hour week. I further note that your co-workers in the department work various full time-hours, with some doing a 35-hour week whilst others work a 40-hour week. In your question you state that when your employer calculates your bank holiday entitlement they work on a pro-rata basis against a 35-hour week. However when they calculate your bonus they pro-rata it against a 40-hour week, meaning you only get 3/4 of the standard bonus and this has left you to wonder whether they should use the 35-hour week for this calculation. You also ask why do the staff who only work 35 hours per week not have their bonus pro-rata against the staff working 40 hours per week?
A part-time worker is generally classed as someone who works fewer hours than a full-time worker. There is no specific number of hours that makes someone full or part-time, but a full-time worker will usually work 35 hours or more per week. Under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations), part-time workers can challenge less favourable treatment which is on the ground of their part-time status if it cannot be objectively justified. This is to ensure that part-time workers are not treated less favourably than comparable full-time workers.
Under the PTW Regulations, part-time workers’ bonuses should generally be paid on pro-rata basis and differential treatment is only permissible if it can be objectively justified by your employer. This principle means that, where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker should receive no less than the proportion of that pay or other benefit that the number of the weekly hours bears to the number of weekly hours of the full-time comparator (regulation 1(2), PTW Regulations). However, a failure to comply with this pro-rata principle does not necessarily guarantee a successful basis for a claim. It is still necessary for the worker to prove that one of the reasons for that failure was their part-time status.
In light of the above I would first of all suggest that you discuss your questions with your employer informally and ask why your bonus is pro-rata’d against those who work 40 hours per week rather than those who work 35. You should also ask your employer why those who work 35 hours per week still then receive the full bonus.
You also have the right to request a written statement of the reasons for the treatment from your employer and if your employer cannot answer your questions sufficiently. I would advise you then submit a request. The request should be in writing and the employer must write back within 21 days. You may also look to raise a formal grievance at this stage regarding the matter if your employer cannot give you any reason for the treatment that can be objectively justified.
If the above course of action does not resolve the situation then I would recommend that you take further legal advice regarding your specific situation. Please be advised that a complaint of less favourable treatment or detriment under the PTW Regulations must be presented to the employment tribunal before the end of the period of three months beginning with the date of the relevant act or omission (or within three months of the last in a series of dates if there was a series of similar discriminatory acts or failures), subject to the rules on ACAS early conciliation.
Should you require any further clarification on the above points then please contact Tracey Guest of Slater Heelis on 0161 672 1246.
*Helen Frankland assisted in answering this question.