Buddy says:  Not necessarily. It is true that employers must ensure that part-time workers are not treated less favourably than their full-time counterparts, but this does not necessarily imply that they become automatically entitled to the same benefits.

There is no statutory right to be paid for public holidays but many employers grant this in addition to the usual holiday leave.  Giving this benefit if the holiday in question falls on a day on which the worker would otherwise normally be at work can result in unfairness to part-time workers who happen not to work on Mondays (when most bank holidays fall).  The simplest way to achieve equality in such cases is to give part-time workers a pro-rata entitlement to public holidays regardless of whether they normally work on days on which bank holidays fall, and to monitor the days on which they work.

Further information:   In order to determine whether he has been subject to less favourable treatment, one must apply the “pro-rata principle” (regulation 5(3), Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations)). The pro-rata principle entitles a part-time worker to not less than the proportion of pay and benefits to which a full-time comparator is entitled, by reference to the relative number of weekly hours worked. Let us assume your part-time employee (X) works three days out of a five-day week. X would therefore be entitled to 80% of the annual leave given to a full-time counterpart. The difficulty with paid bank holidays is that the Working Time Regulations 1998 (which currently states that full-time employees are entitled to 4.8 weeks’ holiday a year) does not specify whether the entitlement includes or excludes bank holidays: it is therefore at the discretion of the employer. Assuming bank holidays do fall within the 4.8 week entitlement in the above case, X would accordingly be entitled to pay in lieu for 80% of the bank holidays which fell on a Monday in any given year.

In McMenemy v Capita Business Services UKEAT/0079/05, the employers operated a seven-day working week where both full-time and part-time employees could choose not to work on a Monday. Where employees did not work Mondays, the employer had a policy of not paying them for bank holiday Mondays. The EAT held that the less favourable treatment of the part-time employee (who worked Wednesday to Friday) was on grounds that the employee did not work Mondays, rather than owing to his part-time employee status. He would not have been treated less favourably than, for example, a full-time comparator working Tuesdays to Saturdays. The EAT did acknowledge that the normal-working-hours approach did disadvantage more part-time workers than full-time workers, but, since there is no protection from indirect discrimination under the PTW Regulations, the claimant’s claim failed.

However, the EAT has subsequently held in Sharma and others v Manchester City Council UKEAT/056/07 that it is now possible to be afforded protection under the PTW Regulations where part-time status is just one of the reasons for less favourable treatment; it need not be the sole reason for the treatment. This therefore casts doubt on whether McMenemy is still good law.

It will therefore be necessary to show that the reason for not paying X for the bank holiday is (a) not because of his part-time status; and/or (b) that refusing to pay him is nonetheless objectively justified (regulation 5(2), PTW Regulations).