Case Report: Part-timers - dealing with bank and public holidays

McMenemy v Capita Business Services Limited (Inner House, Court of Session)

This case considered the fraught issue of how to deal with bank and public holidays for part timers. Capita employed Mr McMenemy on a part-time basis to work on Wednesdays, Thursdays and Fridays. Capita's standard employment contract for both full-time and part-time employees provided that employees were only entitled to public holidays where they fell on the employee's normal working days. Consequently, Mr McMenemy was not allowed time off in lieu when public holidays fell on a Monday. Mr McMenemy brought a claim in the employment tribunal under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, claiming that he was treated less favourably than comparable full-time workers because he had suffered a detriment based on the way in which Capita applied the provisions of his contract of employment relating to public holidays.

The Capita workplace operated seven days a week, so employees could work full time - five days a week - but still not work on Mondays. Indeed, Capita had applied its policy 11 months earlier to Mr McMenemy's line manager who at that time worked full time from Tuesday to Saturday. The Tribunal therefore found that Mr McMenemy had suffered a detriment compared to other members of his team who worked full time from Monday to Friday. However it held that this was not because he was a part-time worker, but because he did not work Mondays. The Court of Session agreed.

In practice, a pro rata apportionment of statutory holidays for part-time workers who do not work on every statutory/bank holiday still presents the least risky course of action, although this decision confirms that a policy of only paying for statutory holidays that are normal working days is not necessarily unlawful. Where all employees in the business work Mondays-Fridays, it may also be more acceptable from a practical human relations perspective, as well as a legal perspective, to apportion statutory holidays pro-rata to workers who do not work on those days.