Many students may find themselves in the position of undertaking part-time work during their time in college and in doing so will enter into a contract of employment. So what rights are invoked when entering into such an employment relationship?
Legislative Starting Point.
When considering the rights of part-time employees, the most important piece of legislation to consider is the Protection of Employees (Part-Time Work) Act 2001. The purpose of this Act was to bring Irish law in line with European law as set out in Council Directive 97/81/EC. The purpose of this Directive and hence the 2001 Act is to ‘illustrate 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.’
It is important to note that the 2001 Act should be read in conjunction with the Protection of Employees (Fixed-Term) Work Act 2003, which provides for a fixed-term worker as a person who has entered into a direct contract of employment with the employer where the end of the contract is determined by an objective condition.
Another piece of legislation that is relevant to the rights of part-time workers, particularly students engaged in ‘temp work’ is the Protection of Employees (Temporary Agency Work_ Act 2012. This is relatively new legislation and is considered an important development in protecting the rights of atypical workers who historically have faced less favourable treatment.
One of the biggest issues faced by employees is that of discrimination on any number of protected grounds such as gender or race. Or often times inequality in relation to the rate of pay received compared to other employees of similar status. Part-time employees are equally entitled to employment equality as any other kind of worker and so it is important to have some understanding of the law in this area.
There are two key pieces of legislation in this area relating to the right to equal pay and the right to equal treatment, both of which are driven by European Law. First, we have the issue of ‘equal pay’ which derives from Article 157 TFEU and is now enshrined in the Irish Employment Equality Acts 1998-2015. The general principle is the notion of equal pay for work of equal value.
It is helpful in this context to consider some case law to establish what constitutes ‘pay’ and ‘work’. In the EU case of Defrenne v Sabena (No.1), a female air hostess had discovered that she was paid significantly less than male crew but no relief was available at the national level. The Court in its judgement considered what could be meant by pay and came to the conclusion that it can be cash or kind, directly or indirectly related to the employment but it must be related in some way.
When it comes to considering what constitutes ‘work’, this was set out in Allonby v Accrington and Rosendale College. Here the Court relied on ‘the single source principle’ which means that the source of payment between the applicant and the comparator (this is the person who is used to prove inequality by comparison) must be the same.
When using a comparator to prove employment inequality in relation to pay, the choice is very important as it may determine the success of the case. When choosing a comparator, it must be an employee of the opposite gender, who is under the same employment, working during the relevant period of time (3 years before or after) and who is being paid more for undertaking work of the same value.
Moving on from considerations of equal pay, what about the concept of equal treatment? This is covered in EU law by Directive 2006/54/EC and in Ireland under the previously mentioned Employment Equality Acts 1998-2015. There are a number of protected grounds under this Act as well as various Directives governing each ground; Gender, Civil Status, Family Status, Sexual Orientation, Religion, Age, Race, membership of the Traveller Community and Disability.
The Employment Equality Act, as well as the Directive, prohibits discrimination in employment on the basis of these protected grounds. This kind of discrimination may be direct or indirect. While some forms of discrimination are outwardly apparent, other forms may not be quite so noticeable and as a part-time worker it is important to be aware that indirect discrimination is a cause of action.
‘Direct v Indirect Discrimination’
Direct discrimination is described as being a case ‘where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of sex, race, etc.
Indirect discrimination, on the other hand, is ‘where an apparently neutral provision, criterion or practice would put (persons of a protected ground) at a particular disadvantage, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.’
One final issue to consider in relation to part time employment is the issue of ‘working time’. Working time is defined as any time you are at the employer’s disposal and carrying out employment duties. How many consecutive hours are you legally required to work? How much time should there be between shifts? What kind of annual leave are you entitled to? All of these questions are answered by Directive 2003/88/EC and the Organisation of Working Time Act 1997.
Under Article 3 of the Directive (s.11 of the Act) each employee is entitled to 11 consecutive hours of rest per day, meaning there must be a minimum of 11 hours between shifts. Article 4 (s.12 of the Act) considers breaks during the working day providing that; after a maximum of 4.5 hours worked an employee is entitled to a minimum 15 minutes rest and after 6 hours entitled to a minimum 30 minutes rest. It is important to note that a break at the end of the day (ie leaving early in lieu of a break) does not comply with this Article.
Article 5 (s.13 of the Act) goes on to consider weekly rest and provides that for each 7 day period worked there should be 24 hours of interrupted rest in addition to the 11 hours of daily rest, providing for 35 hours total uninterrupted rest over a 7 day period.
And finally, annual leave is covered under Article 7 (ss.19-21 of the Act) which provides the basic rule allowing for paid annual leave of at least 4 weeks. Case law has established that this rest time cannot be replaced by a payment in lieu as well as the principle that sick leave or maternity leave will have no effect on annual leave. The rate of pay awarded during annual leave should be the same as the normal weekly pay of the employee.
Hopefully, this article has succeeded in casting some light on the key issues surrounding part-time work and employment rights, as for many workers these rights are not set out by their employer upon commencement of employment. For any further information on any of these issues all of the legislation mentioned is available on irishstatutebook.ie
Louise Kennedy – Law Correspondent