Retailers are dependent on part time workers. Over 1.5 million people in this sector are on part time contracts, according to the British Retail Consortium – which makes it one of the highest part-time proportions in the UK.
People from all manner of backgrounds will prefer part-time contracts in the retail industry, such as students needing hours around studies or parents who need shifts that fit in with caring responsibilities.
However, a recent Court of Appeal ruling may disrupt how shops approach hiring part-timers – or rather, how their careers are progressed.
A recent case in The Court of Appeals involved a part time-taxi driver suing his employer. The operator made it so the part-time driver had to pay the same weekly fee as full-time colleagues to access company databases (a common practice in the cab sector). The court ruled in favour of the taxi business, but the opinions of the judges were mixed.
The disagreement is likely to be challenged in the Supreme Court, with the ultimate decision impacting every employer with part-timers on their pay roll – the ramifications of which will be felt by retailers most of all.
Legally speaking...
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 makes it so part-time workers must be treated with the same level of respect and courtesy as full-timers.
This creates a tricky problem: whether unfair treatment happens due to part-time status. In many cases, it's hard to prove.
Different courts have developed two different tests to prove unfair treatment: the first of which states that part-time status may only be "one of the reasons" for the less favourable treatment.
The second, stricter test requires being part-time be the "sole cause" of any negative treatment, making unfair treatment claims far more difficult to prove.
The continuing evolution of part-time worker rights via the courts has created a level of uncertainty for employers and employees – an unwelcome environment for retailers facing a slew of issues in other facets.
What do taxis have to do with my shop?
In the aforementioned taxi case, the part-time driver argued that the obligation to pay the same database access fee as full-time staff was unfair because it resulted in him losing a higher proportion of his wages than full-time earners.
Initially, The Employment Tribunal dismissed the claim, citing that fees applied equally to all staff. Later, The Tribunal found that the fee could count as less favourable treatment but still dismissed the appeal, applying the strict "sole cause" test. Finally, the Court of Appeal upheld the decision but openly questioned the validity of the sole cause test.
Although the case covers cabbies, the laws application impacts all part timers directly and is being watched closely by legal and human resources teams across the entire retail sector.
Currently the tougher "sole cause" test stands as the law but may change if the Supreme Court decides to hear the case.
Part-timers currently must prove that part-time status was the cause for any negative treatment or dismissals, making successful claims more difficult.
As the situation develops, retailers should get ahead of the curve and review policies to examine how part-time and full-time workers are treated in practice, particularly around benefits, training opportunities and career progression.
Audits over neutral policies (like flat-rate fees or charges) would be a great start, and whether these affect part-timers more than full-time workers. Retailers must also stay up to date on the legal developments in this area, particularly any Supreme Court decision on the matter.
Retailers timers should prioritise fair treatment regardless of which interpretation ultimately wins out to best prepare for any litigation or changes to rules.
Laura Brennen is an associate in the People, Reward and Mobility practice at Dentons
