Part-time work involves employees ‘whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker’ (Clause 3 of the Framework Agreement on part-time work, as implemented by Council Directive 97/81/EC of 15 December 1997).
Over the past 25 years, there has been an increase in part-time relative to full-time employment in the EU. In some cases, this is the result of a political decision to promote part-time work, particularly in countries suffering from high unemployment. For workers, it may offer the chance of a better balance between working life and family responsibilities, training, leisure or civic activities. It can also make it easier for workers progressively to enter the labour market or retire from employment. For employers, it can permit not only greater flexibility in responding to market requirements, e.g. by increasing capacity utilisation or extending opening hours, but also productivity gains. For policy-makers confronting high unemployment, the growth of part-time work may reduce the number of jobseekers or, at least, the number of people registered as such.
Part-time work also has its drawbacks. Part-time workers are very often at a disadvantage in comparison with colleagues who do equivalent work full time. Typically, their hourly wages are lower; they are ineligible for certain social benefits; and their career prospects are more limited. For employers, in addition to organisational difficulties, there are some fixed costs per worker, e.g. recruitment, training or social security contributions subject to wage ceilings, which may increase overall labour costs if the proportion of work done by part-timers is increased.
Union law provides protection for part-time workers with respect to their pay and benefits, pensions and working conditions. Entitlement to equal pay for part-time workers covers all of the pay elements defined in Article 157(2) TFEU. The Equal Pay Directive 75/117/EEC prohibits ‘all discrimination on grounds of sex with regard to all aspects and conditions of remuneration’.
Cases relating to part-time work and equal pay in which the European Court of Justice (ECJ) has upheld claims to equal treatment include:
- severance pay (Kowalska v. Freie und Hansestadt Hamburg, Case C-33/89, );
- seniority or service-related increments on a salary scale (Nimz v. Freie und Hansestadt Hamburg, Case 184/89, );
- paid time off or overtime pay for the purposes of vocational training (Arbeiterwohlfahrt der Stadt Berlin v. Botel, Case 360/90, ; but not to premium overtime payments unless they work more than full-time hours: Stadt Lengerich v. Helmig, Case 399/92, );
- statutory redundancy payments (Barber v. Guardian Royal Exchange, Case 262/88, );
- sick pay (Rinner-Kuhn v. FWW Spezial-Gebäudereinigung GmbH, Case 171/88, ).
Following the procedure under Article 155 (2) TFEU, the Framework Agreement on part-time work was implemented by Council Directive 97/81/EC of 15 December 1997. Its objective is to lay down ‘general principles and minimum requirements relating to part-time work’. It illustrates the willingness of the social partners to establish a general framework for the elimination of discrimination against part-time workers and to assist the development of opportunities for part-time working on a basis acceptable to employers and workers.
The Framework Agreement on part-time work takes its place in the wider context of the EU law protecting part-time workers. In view of the predominantly female composition of the part-time workforce in all EU Member States, the principles, purposes, scope, definitions and implementation of the Framework Agreement cannot contravene EU law on sex discrimination, including Treaty provisions, directives and extensive ECJ case law.
Discrimination against part-time workers refers to unfair or unequal treatment of those whose normal working week agreed under the contract of employment is shorter than that of full-time employees. In the EU, any treatment of part-time workers which is less favourable than that accorded to full-time workers constitutes indirect discrimination and violates EU law, unless it can be justified. In Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC (OJ L 14/9 of 20.1.98), Clause 4(1) stipulates that there can be no discrimination ‘solely because they [the workers] work part time, unless different treatment is justified on objective grounds.’ This appears to permit different treatment: i) if working part time is not the sole reason for different treatment; and ii) if working part time is the sole reason for different treatment, it is admissible if it can be ‘justified on objective grounds.’ This is the second set of ‘objective’ reasons/grounds; the first is in Clause 2(2) allowing for possible exclusion of casual part-time workers. The prevailing assumption is that the entitlements of part-time workers are calculated on a pro rata basis with full-time workers. However, Clause 4(2) appears to indicate that the pro rata temporis principle may not apply. It only applies ‘where appropriate.’
In order to determine whether there is discrimination against part-time workers, a comparator, or ‘standard’ against which such an evaluation can be made, is required. Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work defines this comparator as one who works ‘in the same establishment, has the same type of employment contract or relationship’, and is ‘engaged in the same or a similar work/occupation, due regard being given to other considerations, which may include seniority and qualifications/skills’.
However, these limitations on the scope for comparisons may not be consistent with established EU sex equality law. For example, the European Court of Justice has stated that comparisons may be made ‘in cases in which women and men receive unequal pay for equal work, which is carried out in the same establishment or service...’ (Defrenne v. Sabena (No. 2)), Case 43/75, ). The restriction in the Agreement to comparisons with workers ‘in the same establishment’ may, therefore, be overridden where a claim can be based on the more general grounds of sex discrimination.
See also: atypical work; casual worker; discrimination; equal opportunities; fragmentation of the labour force; equal treatment; gender equality; women in the labour market; working time; work-life balance.