Difference between fixed-term and part-time employment
A part-time employee is an employee who works less hours than a comparable full-time employee. This is set out in the Protection Of Employees (Part-Time Work) Act 2001.
A comparable employee is described as someone employed by the same employer, or a closely associated employer, who performs the same type of work. There is no specific number of hours outlined in the Act that separates a part-time and full-time worker, leaving much interpretation over who is considered a part-time employee.
A fixed-term employee is much more clearly defined in the Protection Of Employees (Fixed-Term Work) Act 2003.
They are an employee whose contract has a specific end point such as a certain date, the completion of a certain task, or the occurrence of a specific event. The amount of hours is not relevant to meet the criteria for a fixed-term contract, but an employee cannot avail of both the protections of part-time and fixed-term contracts if they want to file a complaint for an unfair dismissal.
Agency Work
An agency worker and a permanent worker cannot be comparable regarding the determination of the part-time status of an employee. A worker who is employed through an agency may only compare themselves to another worker employed by an agency. Agency workers are protected under a separate act called the Protection of Employees (Temporary Agency Work) Act 2012.Protections of part-time employment
Part-time employees have the right to be treated just as favourably as full-time employees.
This includes being entitled to minimum notice of dismissal (outlined in the Minimum notice and Terms of Employment Act 1973), access to pension opportunities and benefits, and permission to ask for parental leave.
Employers can only treat you less favourably if the treatment can be objectively justified.
Unfavourable treatment does not justify discrimination made against a person. For example, a disabled person who can only work part-time due to their disability may not be treated anymore unfavourably than a comparable non-disabled part-time worker. This is set out in the Employment Equality Act 1998.
You have the right as a full-time worker to request to work part-time from your employer. They do not need to approve this request, but you cannot be penalized for making it. If your request is refused a justifiable reason must be given.
Protections of fixed-term employment:
Fixed-term employees are also entitled to be treated just as favourably as permanent employees.
This is laid out in the Protection Of Employees (Fixed-Term Work) Act 2003.
Like part-time workers, any unfavourable treatment towards fixed-term workers must be objectively justified.
Fixed-term workers are sometimes subject to a probationary period. This cannot last for longer than 6 months except for in exceptional circumstances. Once a fixed-term contract is renewed, a new probationary period cannot be issued.
Additional protections exist for fixed-term contracts. After 4 years, a fixed-term employee must be made a permanent worker, or objective justification must be given why a permanent contract is not being offered.
The exception to this is for individual contracts whose timeframe extends over the 4-year period, for example a single 5-year fixed-term contract.
What is Objective Justification?
Both acts make provision for the unfavourable treatment of part-time and fixed-term employees, if that treatment can be objectively justified.
For example, a fixed-term employee might not be offered a company car because of the disproportionate amount of cost it would incur, compared to a permanent comparable.
Adequate effort must be taken in these situations to minimise the unfavourable treatment of that employee, for example, subsidizing public transportation.
Failure to minimise the unfavourable treatment means it is no longer objectively justified, according to the ruling of Monaghan v An Post [2013] IEHC 404.
Here, Mr. Justice Hedigan makes the following ruling:
“The default position is one of non-discrimination and no less favourable treatment…The means chosen by An Post was not the minimum unfavourable treatment required in order to achieve the legitimate objective. As it went beyond what was necessary, it failed the applicable test.”
How to make a complaint:
Complaints surrounding matters of employment are handled by the Workplace Relations Committee (WRC).
The statue of limitations regarding part-time and fixed-term employment is six months from the date of the dispute, or if multiple disputes took place, from the date of the last dispute. Another 6 months may be provided in exceptional circumstances, but generally after 6 months any complaints made will be statute barred.
Setanta solicitors can consult and assist in submitting a complaint to the WRC.
Conclusion
Employees can be employed on a part-time or fixed-term basis.
Workers employed by an agency do not fall under part-time or fixed-term protections.
There are clear protections laid out that prevent the unfavourable treatment of part-time and fixed-term employees in relation to their permanent contemporaries.
These protections may be circumvented under special circumstances, when the grounds are objectively justified.
Disputes arising from these protections are handled by the WRC.
