SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MANDATE)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal of Rights Commissioners Decision R-031777-Pt-04/TB & R-031775-Pt-04/TB.
2. This is an appeal of Rights Commissioners Decision R-031777-Pt-04/TB & R-031775-Pt-04/TB. The dispute concerns the removal of half-day Christmas shopping leave from two part-time workers employed by the Company.
The Union's position is that a half-day paid shopping leave applied to the workers since
they commenced employment and remained until November 2004 when it was removed from part-time staff on the basis that it had been given on a concession basis and applied only to full-time workers who were working 6 days per week in the two weeks prior to Christmas. The claimants had initially worked full time and had benefited from the concessionary half day and had continued to benefit when working part-time. In this regard, the Company maintain that it had been an error on their part that the half-day had remained when the workers changed their status to that of part-time.
The Company appealed the decision to the Labour Court on the 4th July, 2005 in accordance with Section 17(1) of the Protection of Employees (Part Time Work) Act, 2001. A Labour Court hearing took place on the 15th September, 2006, the earliest date suitable to the parties.
3. 1. The half-day shopping leave applied to all staff until 2000. In 2000, when some staff changed to part-time the benefit remained in place until 2003 when it was withdrawn by Management.
2. It is unacceptable that a benefit given to all staff since 2000 be removed from part-time staff on the basis of their part-time status. This is a clear breach of the Protection of Employees (Part-Time) Work Act, 2001.
4. 1. The half-day shopping leave was given on a concession basis to full-time workers who worked 6 days per week on the two weeks prior to Christmas to take account of difficultiesencountered by working extra hours. It is not a negotiated entitlement and was removed from part-time staff on the basis that they had not experienced the same difficulties as the full time workers who were working such long hours in the run up to Christmas.
The Respondent operates a drapery and travel business from its premises in Sligo. The Claimants are employed by the Respondent in a part-time capacity and each of them works a three day week. They are part-time employees within the meaning ascribed to that term by section 7 of the Protection of Employees (Part-Time Work) Act 2001(the Act).
The Claimants, in common with all comparable full-time employees, have traditionally been allowed to take a half-day off work with pay in the two weeks before Christmas. In this period full-time staff in the drapery section of the business work a six-day week – Monday to Saturday.
Normally they work a five day week from Tuesday to Saturday. In November 2004 the Respondent informed its staff that henceforth this facility would only be provided to
full-time staff in the drapery section of its business.
The Claimants, through their Union, took issue with this change and contended that it contravened s 9 of the Act. Correspondence and discussions ensued between the parties. The benefit was restored to full-time staff in the travel business (who did not work a six-day week) but not to the Claimants. The Union then presented a complaint to a Rights Commissioner pursuant to s 16 of the Act. The Rights Commissioner held that the Respondent had contravened the Act and directed that the Claimants be afforded time off pro rata to that granted to the full-time staff.
The position of the parties
In its appeal against the Decision of the Rights Commissioner the Respondent contends that the difference in treatment afforded to the Claimants is justified on objective grounds. The Respondent contends that the half-day off was in consideration of staff working two extra days in the run-up to Christmas and was to facilitate them in doing Christmas shopping. The Claimants maintain their normal attendance pattern during this period and it is submitted that they cannot, on that account, claim an entitlement to a facility which applies in consideration of six-day working. The Respondent contended that when the Claimants started working part-time in or about the year 2000, they continued to take this half day and this was allowed because of a oversight by the management of the Respondent. The Respondent accepted that the benefit was provided to full-time staff in its travel shop who did not work six days per week at the material time.
The Union submitted that the facility was provided to all staff including the Claimants up to Christmas 2004. It was then withdrawn from the Claimants expressly because they worked part-time. In reliance on section 12 of the Act the Union submitted that the status of the Claimants as part-time employees could not be relied upon as providing objective grounds for the less favourable treatment complained of. The Union further submitted that the first occasion on which the Respondent sought to associate the half-day at issue with the overtime worked at Christmas was in the context of the present proceedings.
Section 9(2) of the Act provides, in effect, that a part-time employee may be treated less favourably than a comparable full-time employee where the different treatment is justified on objective grounds. What constitutes objective grounds is governed by section 12 of the Act, which provides as follows: -
“A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”
It is therefore for the Respondent to make out that defence and to prove the factual assertions upon which it is based. In the instant case this means that the Respondent must first satisfy the Court that the half day at issue was in fact introduced specifically in consideration of six-day working.
It is clear on the facts of the case that the benefit applied to full-time staff who worked a five day week (those in the travel business). Consequently, the Respondent’s claim that the benefit is solely related to six day working is not sustainable. In these circumstances the Court is satisfied that the only basis upon which the benefit was withdrawn from the Claimant’s is that they were part-time employees. This could not constitute objective grounds within the meaning of section 12 of the Act.
Furthermore, the Court accepts that the scope of the benefit at issue is not dependant on the hours worked by employees to whom it applies since it applies equally to full time staff who worked a five-day week or a six-day week. Consequently it is inappropriate that the benefit be pro rated having regard to the provision of s 10(2) of the Act.
The appeal is disallowed and the Rights Commissioner Decision is affirmed with the modification that the Claimant are entitled to the half-day off on the same basis as the their full-time colleagues.
Signed on behalf of the Labour Court
22nd September, 2006______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.