Advocating for Equal Treatment in Part-Time Employment

Authors: Ann Bugeja & Christine Borg Millo

Less favourable treatment is always condemned in an employment relationship, more so when comparing whole-time employees as opposed to part-time employees.[1] In fact, the Part time Employees Regulations (S.L. 452.79 of the Laws of Malta, and hereinafter referred to as the “Regulations”) better facilitates the flexible development and organisation of working time and aims to remove the existence of any discrimination which may arise. Such equal and non-discriminatory treatment would be with regards to the employee’s terms and conditions delineated in their contract, and in relation to any act by which the employee would be directly or indirectly affected by.

Part-time employees may be justified in being treated differently when based on objective grounds and decided on a case-by-case basis. Moreover, it is permissible for a collective agreement, or any contract of employment entered into between the employer and the part-time employee to introduce more favourable provisions which support the employee and go above and beyond the minimum rights fixed by the Regulations.

The below are the rights which the Regulations establish for part-time employees.

1. Right of equal hourly rate of pay

Firstly, part-time employees are to be paid the same hourly rate applicable to comparable whole-time employees. In this discussion, the wage applicable to a part-time employee, as a pro-rata remuneration payment, is the hourly rate related to the number of hours of work for which the employee is employed. With regards to wages, a part-timer is also eligible to receive statutory bonuses and other income supplements to which comparable whole-time employees on similar duties with the same employer are entitled to in terms of the recognised conditions of employment applicable to them.

2. Right to receive a written statement

What happens when a part-time employee suspects that their employer may have treated them in a discriminatory way? The law allows for the employee to request a written statement from their employer, which statement would include the reasons, if any, for the difference in treatment. This statement must be provided by the employer to the employee within twenty-one (21) days from the employee’s request. This written statement is also considered to be admissible evidence in any Tribunal or court proceedings, should the need arise.

3. Right to leave entitlement

Aside from the right to pay, another right which emerges from the Regulations is the entitlement to the various forms of leave which the law provides to all employees. These include: annual vacation leave, sick leave, birth leave, bereavement leave, marriage leave and injury leave amongst other. This right also extends to the entitlement to all public holidays listed in the National Holidays and other Public Holidays Act (Chapter 252 of the Laws of Malta).

Leave entitlement is computed in hours, as a fraction of the total number of hours of leave entitlement of a comparable whole-time employee.

4. Right to participate in vocational training and any whole-time opportunities

The entitlement to participate in vocational training programmes, provided by or on behalf of the employer, is another right granted to the part-time employee.

Any employer should not exclude the possibility that the employee may, in the future, wish to opt for a full-time position in that Company, and the law once again promotes non-discrimination to the employee in this regard. In fact, the Regulations state that it is the duty of the employer to inform their part-time employees about any whole-time work opportunities or availabilities.

Unfair dismissals of part-time employees and the role of the Industrial Tribunal

The law lists those situations where a part-timer is regarded to have been unfairly dismissed. Hence, the employer CANNOT dismiss the part-time employee when:

1. The employee decided to bring proceedings against the employer for any infringement of their rights;
2. The employee requested the written statement of infringement of their rights,;
3. The employee provided any evidence or information related to proceedings brought by a colleague;
4. The employee alleged that the employer infringed any rules of the Regulations;

In this regard, the role of the Industrial Tribunal shall kick in. Any part-time employee is  free to present a complaint in front of the Industrial Tribunal when one of his rights as a part-timer has been infringed. The general rule that a case must be presented to the Tribunal within four (4) months also applies here. This period begins to run from the date of the less favourable treatment recorded by the employee (including on each day of the period during which the term is less favourable); or else from the date of the alleged unfair dismissal. This must also be coupled with adequate evidence in order to ensure that the four (4) -month period to file the case with the Tribunal has not elapsed.

Where the employee presents a complaint to the Tribunal and the employer claims that the treatment is justified on objective grounds, the burden of proof falls on the employer to prove that the less favourable treatment is so justified on objective grounds.

Concluding remarks

The law which regulates part-time work is certainly necessary in today’s ever-evolving work reality, as it offers great flexibility whilst also crucially providing the employee with minimum working rights. At the same time, it ensures that the employer can remunerate the employee and offer leave entitlement on a pro-rata basis and overall maintain a level-playing field via an equal balance between part-time employees, and comparable full-time employees.

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[1] Meaning those employees whose normal hours of work, calculated on a weekly basis or on an average over a period of employment of up to 1 year, are less than the normal hours of work of a comparable whole-time employee.