Dr Seán Farren
Minister for Higher & Further Education,
Training & Employment
Adelaide House
Adelaide Street
BELFAST 1
9 November 2000

Dear

PART-TIME WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS (NI) 2000

These Regulations were made by the Department of Higher and Further Education, Training and Employment on 20 June 2000 and came into operation on 1 July 2000. There were laid before the Assembly under Article 39(1)(a) of the Employment Regulations (NI) Order 1999 for approval by resolution before the Assembly before 1 January 2000.

Our Committee has considered these Regulations, and, at its meeting on 9 November 2000 agreed the report on these Regulations as set out at the Annex to this letter. It is by no means an exhaustive review of the Regulations or the associated literature published by the Department. However we consider it is important to draw to your attention our view that it would be prudent to encourage the Department urgently to review its approach in relation to the concerns raised by the Committee, to ensure that the intent of the legislation is fully delivered, and to minimise the scope for future litigation problems.

Having said this, we recognise the imperative for the Regulations to be confirmed within the required timescales.

Yours sincerely

Esmond Birnie

Dr Esmond Birnie
Committee Chairman

ANNEX

PART-TIME WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS (NI) 2000 - SR 2000/219

These Regulations came into operation on 1 July 2000, and are subject to approval by resolution by the Assembly before 1 January 2001.

At its meeting on 9 November, the Northern Ireland Assembly's Statutory Committee for Higher and Further Education, Training and Employment finalised its consideration of these Regulations.

The Committee has considered all the issues under Standing Orders (4)(a) - (g), and considers that at this stage there are no grounds for special report. We also recognise the requirement to implement the European Part-time Work Directive, and the associated requirement therefore to confirm the Regulations, to avoid any possible Francovitch-type claims which could ensue as a result of failure to confirm.

However, the Committee considers that a number of issues should be drawn to the attention of the Minister, in relation to the content of the Regulations, and of supporting literature produced by his Department, as follows:

- (a) We are concerned that "legitimate" treatment of part-time workers under the Regulations potentially enable what could be perceived as effective discrimination against part-timers. For example, Regulation 2(3): A part-time worker on a fixed-term contract cannot compare his/her terms with a full-time worker not on a fixed-term contract - even if all other terms of the contract, and the experience or responsibilities of the two individuals, are the same. We are concerned that similar limitations with respect to lawful comparators mean that the terms of employment, and rights, of term-time workers in administration etc in schools cannot properly be addressed by the part-time work regulations.

- (b) We are concerned that the Regulations possibly so restrict comparisons that the number of part-time workers who benefit from the Regulations is also unduly restricted. In the absence of evidence that most employers are already applying equality of treatment, we are disturbed to note that only 7,000 part-time workers in Northern Ireland will benefit. The cost of £500,000 quoted in the Northern Ireland Impact Assessment also seems to us to indicate that the scope of the regulations is unduly narrow in Northern Ireland, and we surmise that this is, in part at least, due to the extent of small business employment of part-timers, and the absence of a hypothetical comparator within the Regulations.

- (c) Regulation 2(4): The definition rules out the hypothetical comparator in respect to how the part-time worker would be treated. The Sex Discrimination Order does not. The Committee is therefore concerned that it is likely that, in many cases, women in particular (who comprise an estimated 75% of Northern Ireland's total part-time workforce) will be advised, routinely, to bring claims under both sex discrimination law and under the Part-time Workers' Regulations. Should not this ambiguity be addressed?

- (d) Regulation 4: We are concerned that Employee A (working for an Agency) doing the same work, under a similar contract to Employee B (working for Employer X, not the Agency) is not entitled to the same conditions as Employee B. Is this not incompatible with the stated aim of Regulations, that employers should imply the principle of equal treatment to all part-time workers?

- (e) Regulation 4 requires comparators to be engaged in the same or broadly similar work, with regard to both responsibility and experience etc. By definition however, part-timers' opportunities to gain experience will be less than those of full-time workers. Again we fear that the specification of "legitimate" treatment of part-time workers effectively permits discrimination which is contrary to the spirit of Regulations.

- (f) We are concerned that a Statutory Code of Practice has not been introduced. We saw for the first time, during yesterday's meeting, an accessible, easy-to-read guide on the Regulations which has been made available through all Job Centres. However, we believe that this detailed guide could be confusing in areas (Page 4 - references to performance pay, which is an individual determination, in a way which implies a group tendency) and in other areas give misleading (or, we wonder, perhaps unlawful guidance - Page 10, could the example of jobsharers sharing a vehicle be challenged in practice under sex discrimination legislation, if a fulltime comparator had access to a car fulltime, including out of work use? Page 15, "If a lot of vacancies are filled …" - is this contrary to NI legislation?) Also, we note that the guide does not contain adequate guidance on specification of the conditions governing comparitors. It has been pointed out to us that, in particular, the lack of some statutory guidance on what comprises objective grounds and what does not, leaves this whole issue to be battled out at tribunal.

- (g) We have referred to the possibility that in many cases may be pursued under both sex discrimination and part-time legislation. We are concerned at the mismatch and ambiguity demonstrated in some of the examples above, and that the Regulations are inconsistent with existing legislation.

- (h) We are concerned that the onus is on the individual to identify his or her own rights as a part-timer. As well as providing information to representative bodies, we also consider that employers should periodically review how individuals are provided with information on their rights as part-time workers.

- (i) We are particularly concerned that workers in the Northern Ireland Assembly should be covered by this legislation.

- (j) We asked how the Regulations were going to be evaluated. We believe that there should be some form of inspection to ensure that they are being properly implemented.

The above is by no means an exhaustive review of the Regulations or the associated literature published by the Department. However we consider it is important to encourage the Department urgently to review its approach in relation to the concerns raised by the Committee, to ensure that the intent of the legislation is fully delivered, and to minimise the scope for future litigation problems.

The Committee regrets that the suspension of Northern Ireland Assembly cut short its contribution at a critical stage of the consultation on these draft Regulations.

9 November 2000

Minutes of the 9 November 2000, section 4, para 3

Minutes of the 16 November 2000, section 1 para 1