Employers that do not give part-time employees pro rata days off to reflect bank holidays may not be held as discriminatory under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The case of McMenemy v Capita Business Solutions heard at the Court of Session in Scotland found the company had not discriminated against a part-time employee. This result is likely to be taken into account in similar cases heard in England.
McMenemy was initially a full-time employee who switched to part-time hours at the company, which operates a seven-day working week. As he no longer worked on a Monday, McMenemy felt he missed out on most bank holidays because the company’s policy only entitles staff who work on a bank holiday to time off in lieu. He claimed that the company’s failure to grant him time off in lieu was detrimental to him as a part-time employee.
The original tribunal found against McMenemy, as did the Employment Appeal Tribunal and the Court of Session. Should he choose to appeal, the next stage will be heard at the House of Lords.
Anisha Esmail, a solicitor at law firm Boyes Turner, said that because the case was so recent its full impact was not yet known. “Clearly, it is open to employers to argue that their part-time workers are not entitled to Monday statutory holidays if those individuals do not work those particular days. Such an argument is more likely to be successful where the employer’s business operates seven days a week and can produce evidence of both fulland part-time workers working a variety of different shift patterns,” she explained.
Esmail added the court had considered it significant that Capita also employed a full-time employee, who worked from Tuesday to Saturday, that had been denied time off in lieu for Monday bank holidays.