Part time contract still working full time - anyone?

[parttimewarrior]

I'm at the beginning of what is going to be a legal battle with a law firm about this. I know I'm not the only person to have found themselves in this situation (and I won't be the last) - but I'm reaching out for my own sanity to hear other stories too.

Here's mine.

I returned to work full-time and it was too much. I asked to reduce my hours to a 4.5 day working week and the firm agreed. My salary and holiday entitlement were reduced to reflect the reduction in my contractual working hours.

The thing is, my actual working hours didn't change. In fact, at some points I worked even more than when I was "full-time". The result: the firm took the benefit of the hours that I worked and didn't pay for them. It decided that I was not entitled to be paid for, or receive holiday pay based on, 35 hours work per week even when I worked at least 35 hours per week because my contract was for 4.5 days. Colleagues were entitled to be paid for and receive holiday pay based on the same 35 hours of work because their contract was for 5 days.

Informal then formal grievance and appeal got nowhere. So now I've started a claim.

Is this a problem that's as prevalent as I think it is? Has it happened to you or someone you know?

It's just beyond wrong!

For me the starting point is obviously your contract and what benefits are you entitled to for one hour of work up to full time hours. What happens to any paid hours over full time.

If your contract specifies full time hours are 37.5 hours then the first 37.5 hours an employee works each week attract an hourly pay and associated benefits.

For example a days annual leave is 7.5 hours so an employee is paid 7.5 x their hourly rate. For example annual salary/1957.5 hours (37.5 x 52.2 ) you need to know your employers factoring. However, their employer also pays employer NI and pension contributions on that 7.5 hours - a monetary benefit. The employee also accrues annual leave based on 7.5 hours. Other benefits may also accrue based on hours worked e.g. SMP, OMP, OSP etc.

a)If a full time employee regularly works 50 hours a week for no extra pay I.e. 10 hours a day, they are still paid 7.5 hours when they take a days annual leave.

b) If a full time employee regularly works 50 hours a week but are paid overtime once they reach 45 hours I.e 50 hours = 37.5 hours full time pay + 5 hours over time + 15 hours unpaid. The overtime may be paid at x 1.5 or x2.0 but may not be pensionable.

If a part time employee is contracted to work 30 hours but regularly works 50 hours a week how are they paid?
a) 50 = 30 hours part time pay + 20 hours unpaid? or 37.5 hours full time pay + 12.5 hours unpaid?
b) 50 = 30 hours part time pay + 5 hours overtime + 35 hours unpaid? or 37.5 hours full time pay + 5 hours overtime + 15 hours unpaid?

If a part time employee is contracted to work 30 hours but regularly works 40 hours a week how are they paid?
a) 40 = 30 hours part time pay + 10 hours unpaid? or 37.5 hours full time pay + 2.5 hours unpaid?
b) 40 = 30 hours part time pay + 10 hours unpaid? or 37.5 hours full time pay + 2.5 hours unpaid?
The Part Time Workers. (Prevention of less favourable treatment) Regs 2000 states “pro rata principle" means that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker;

As 1 hour of pay for a full timer attracts Pension contributions and accrues benefits such as annual leave if a part timer works up to full time hours how is it not less favourable treatment to pay them less?

For example a part timer on 30 hours is pregnant and during the 8 week qualifying period works 40 hours a week their Occupational Maternity Pay is based on 30/37.5 x full time annual salary. A full timer is pregnant and during the 8 week qualifying period works 40 hours a week their Occupational Maternity Pay is based on 37.5/37.5 x full time annual salary.

@Propertylover OP is an employment lawyer - so probably a salaried job. In which case, she is treated exactly the same as her FT counterparts by getting no overtime.
Your statement regarding '1 hour of pay =X benefit' doesn't apply here because they aren't paid hourly. In fact, since the relevant measure here is proportion. OP working FT hours, which is at most 4 hours more than contracted. Is doing proportionately LESS than her FT colleagues who work extra hours daily! Even an hour a day adds up to 5 hours at the end of the week, that's almost a full day of work. So how is she being disadvantaged?

@saltinecrackers If the full time salary is £50k Pa how would you calculate the OPs part time salary for a 30 hour week?

@saltinecrackers some salaried staff get overtime https://www.civilserviceworld.com/professions/article/government-legal-department-staffers-get-overtime-pay-boost

I had exactly the reverse experience. I was on an 80% contract. My boss put me up to a 100% contract without changing my working pattern as he said it better reflected my inputs/outputs.

I'm not an employment lawyer but your case looks very flimsy to me, sorry!

Is it worth getting yourself a reputation in the profession over this?

30/35 = 6/7, so that multiplied by 50K. It would be your a) scenario above without overtime.

The very first sentence of my comment stated that OP is 'probably' salaried staff by which I obviously meant no overtime! Not only is OP an employment lawyer, a job that generally doesn't pay overtime. She also wants the equivalent pay of FT staff. If it was a job that generally paid overtime, she would already be getting the equivalent of an FT salary in overtime for the 35 hours . and her colleagues would be getting more than 35. Her complaint however is about them getting exactly 35 hours worth and her less. I doubt that they work only 35 hours while the OP is doing, erm, more than an extra half day a week.

In my current job role (software engineer) staff who do on-call get paid overtime and have a different contract. However, my role doesn't require it. And so my contract has a clause stating that additional hours beyond my contracted may be required, as necessary. I've also opted out of the Working Time directive.

It's not unlawful provided that the extra hours don't take my below minimum wage.

FWIW I don't think OP is morally wrong. However, I don't think she has a legal case. Happy to be corrected by legal bods as IANAL.

Firstly all salaried staff have a notional hourly rate e.g. £50,000/52/35. Without this you can’t pro rate for part time staff. Without this how do you pay a KIT or SPLIT day?

Using one of my examples “If a part time employee is contracted to work 30 hours but regularly works 50 hours a week how are they paid?
a) 50 = 30 hours part time pay + 20 hours unpaid? or 37.5 hours full time pay + 12.5 hours unpaid?”

You are comfortable saying two employees on £50k both work 50 hours a week for a month and one gets paid £4,166.67 gross and the other gets paid £3,571.43 gross? The only difference is one has a part time contract.

If you then use another of my examples which I have slightly tweaked
A part timer on 30 hours is pregnant and during the 2 month (8 week) qualifying period they work 50 hours a week and their Occupational Maternity Pay is based on an average weekly salary of £824.18. Compared to a full timer who is pregnant and works an average of 50 hours a week during the qualifying period whose Occupational Maternity Pay is based on an average weekly salary of £961.54.

I always advised part time salaried staff to go full time or maximise hours starting before the qualifying period so they got higher OMP.

The first 35 hours (or what ever is Full Time) an employee works should be paid at the same rate otherwise it’s less favourable treatment. It is additional hours not overtime. Overtime is once you have worked and been paid full time hours.m

Looking at it from a different angle, why did you ask to reduce your hours if you can, and do work full time? What did you want from the request and are you getting any benefit at all? Flexibility in when you work for example?
I think you have to manage your employers expectations. They obviously need you as you work more than you're contracted hours, so they're not going to want to lose you. Take back control starting now

This is so badly thought out. I can't believe the OP has the cheek to link to a begging page.

Honestly as she is an employment lawyer I'd be happy to be educated on the legalities of it! But she's just disappeared.

@Propertylover 100% comfortable with your 3rd paragraph. But not for the reason you think.
A part-time contract should have a part-time workload. However, one cannot control the amount of time an employee takes to accomplish the work, or what they pick up of their own accord.
People wanting to get ahead for instance may agree to take on more, despite being part-time. Or they might be less efficient, needing more time than others to accomplish the same task. You may think this doesn't happen but in my field, very possible where hours don't necessarily correlate to output.

If there is an expectation for OP to have a similar caseload (or whatever 'metric' it is, that output is measured by, as stated by another PP) then this is unfair. However, the argument should be about reducing said targets. Or otherwise, changing her contract back to full-time.

It shouldn't be about paying her for hours worked because that puts her on different terms compared to full-timers who have to do the necessary however long it takes. Also it might be busy during certain periods, very much less when quieter... how would that be worked out? Paying a variable salary is a change in contract. She is paid a fixed amount to do the job.

It's definitely a problem. This is why in law reducing hours is rarely a good idea, compressing maybe, but not reducing.

It's the most ridiculous sector in which there's no extra pay, no TOIL, no added benefit if you work extra. Yes, you may end up hitting your target and getting a bonus, but really, these practices aren't acceptable. And I'm not just talking about a couple of hours per week extra, we all know what it's like to practice in a firm.

Just wanted to say I fully support you and admire your bravery with taking this to court and getting it tested as everyone is too scared too. You are brave and and epic woman well done I will donate to your fund

@saltinecrackers we will have to agree to disagree.

What I can say is payment for part time additional hours for salaried staff (including lawyers) is a policy routinely applied in my sector.

@Propertylover yea but as a policy, not at an individual level. The OPs claim details aren't nearly clear enough to understand her grounds and the legalities for her case.

What grounds was her grievance offered for example? We dont know.

I'm dubious about this also as OP has disappeared. There's not a lot of info coming from her. The whole thing could be a scam.

Be careful full of anyone is considering donating.

@StealthMama Thanks for this. I had already clocked there are two similar threads both quoting the Instagram page and was suspicious. Absolutely no intention to donate.

I agree about a lack of detail which is why my arguments are at a general level assuming like for like.

I am an employment lawyer. I have 27 years PQE and am an equity partner and head of department in a large, very well known firm.

I cannot see how the OP is making out her case. I mean there must be some way she is attacking it since she has other lawyers on board pursuing the claim for her but it simply isn't feasible as a legal argument as far as I can see.

Interestingly I was with a KC yesterday and asked him and he was also struggling to work out how this would be approached.

I'm very interested though.

Effectively, if this argument succeeded the OP would set a precedent which would be so far reaching that it would collapse businesses in all sectors across the country. That would then undoubtedly lead to a situation where companies were all scrambling to slash contractual holiday entitlement.

If a full time solicitor anywhere in the private sector is working 35 hours and only 35 hours then I'd be pretty surprised. In all likelihood, most are contracted to work core hours of 9-5 plus such other hours as are necessary to do the job. They probably then get around 5-6 weeks annual leave plus bank holidays. In reality this means most solicitors will be working closer to 50-60 and lots will be working far more than that. Many then don't even take the holidays they are entitled to.

Mr Parttimesolicitor works 3 days a week. The FTE entitlement is to 6 weeks leave and core hours of 35 plus such other hours as are necessary without additional remuneration. The pro rated entitlement is therefore to 3.6 weeks' leave.

Mr Parttimesolicitor says that over this three days he actually works 35 hours which is feasible. As a result he wants the full time holiday (and by extension of that argument, the full time salary) because the core hours are 35 per week. He is however conveniently ignoring the fact that his full time colleagues are working 60 hours not 35 hours because the job isn't an hourly paid job, its a salaried role where you work until the job is done. So Mr Parttimesolicitor wants to work 2/3 of the week but get all of the pay and all of the leave of a full time worker.

Effectively what Mr Parttimeworker wants is a job where he only works 9-5. That isn't his contracted role.

If the OP's argument succeeded on a contractual basis (in simple terms the more I work, the more holiday I get) then Miss Fulltimesolicitor who is contracted to work core FTE hours of 35 hours but actually is working 60% more than that would be able to use the principle to argue that she is entitled to 60% more leave. So suddenly Miss Fulltimesolicitor is "entitled to" 9.6 weeks' leave instead of 6 weeks' leave. Unsustainable when applied across a business.

It's then applied to all other benefits eg pension, salary etc

It can't succeed. You're asking the tribunal to imply a term that leave entitlement increases with hours worked in a salaried role. It doesn't. It is whatever the contract says it is.

The only way to think about attacking it is then to look at discrimination. Equal pay legislation can't help you. You can potentially claim on the basis of an inequity in benefits where someone is doing like work, work of equal value or WRE (unlikely in a law firm), but in order to succeed in the claim you have to show that the difference in the treatment is sex. It isn't, it's the contracted core hours.

So you're left with at best some sort of indirect discrimination claim along the lines of women are more likely to work part time and are therefore disproportionately disadvantaged by a policy to pay part timers less than full timers. But at this point I'm stumped since this only gets off the ground if they are not paid on a pro rated basis. So if full timer gets £100k/10 weeks leave and someone who works 50%FTE gets £30k/3 weeks leave then yes of course there is a claim but how is there a claim if its pro rated?

Genuinely intrigued. I'll be looking out for it being heard since it doesn't look like the OP is going to explain but if it even succeeds at first instance (because surely it would go to appeal - particularly with a law firm Respondent), it would create such a tidal wave through businesses up and down the country that there would undoubtedly be policy based intervention. You'd also be banging the nails in the coffin of part time working pretty much forever. No business would be able to afford it so there would be no benefit to allowing it.

I also suspect it may be a scam.

But I suspect this is public sector and they are paid a lot less. Plus they still wouldn't get additional annual leave.

Thanks for the engagement everyone - whether supportive or hostile.

I'll be checking this thread at best twice a week.

I started this discussion to gauge whether other women have experienced the same as me and, if so, to decide whether it's worth expending my energy to fight the point rather than accept an offer that will be made to make this go away.

I don't need legal advice (great lawyers have already fed into this). I'm not going to litigate via this platform. I'm not going to drop whatever I'm doing to answer questions straight away.

I left the firm where this happened and am now at a firm where things are properly managed but not every women's in that position. I, like everyone else, worked far more than "normal" contractual hours. It's part of the game and
firms recognise that via bonus, a totally separate thing.

If people are genuinely interested in what I'm doing and how my claim is being pleaded very happy to share those details but this isn't the place for that. PM me.

@mynameiscalypso - your boss sounds like a unicorn. Could they come and run all law firms please? Retention and progression of women into senior roles would go through the roof!

From memory the holiday pay calculation means they would get the additional hours payments included when calculating their hourly rate so receive higher holiday pay when they take leave rather than extra hours. Which works out the same.

Because public sector workers are effectively hourly paid by virtue of their flexitime and clocking systems. But solicitors in private practice aren't.

Ludicrous argument OP. You put in place your boundaries (or evidently lack of them in your case).

If all the full-timers were only working 35 hours then why not go full-time if you were working 35 hours a week. They weren’t though were they. Probably 45-60.

@user09876543 Flexitime and clocking systems do not link to payroll as employees are salaried. Many contracts include unmeasured work, so whilst they may use flexi sheets this is to make sure as a minimum they work their contracted hours (presenteeism) but in reality many work a lot of unpaid hours and just like lawyers don’t get paid for them as they are salaried.

I am happy to be corrected but my understanding is all payroll systems have basic calculations built in these include an hourly and daily rate.

So a lawyer on £50k whose full time hours are 35 a week would find on payroll their hourly rate may be £50,000/52/35 or £50,000/52.2/35. Their daily rate may be £50,000/260 or/261 or even /365.

If that lawyer took a days unpaid absence they might depending on the calculation lose 1/260th or 1/365th of their salary.

You may not be aware of the Supreme Court decision of Hartley v King Edward VI College, the Court determined that if teachers lawfully strike for one day, an employer should deduct 1/365 of annual pay.
In this case, the employer had made a deduction at 1/260 relying on the fact there were 260 working days in a year.

Teachers are similar to Lawyers in terms of unmeasured hours, but not holidays.

What the Supreme Court did not set out was how do you calculate a days pay for someone working a compressed hours 4 day week or a part timer working less than 5 days. The results are interesting to say the least.

The notional underpinning of hourly and daily pay is important to ensure equitable treatment. If you don’t define what full time hours are you can’t pro rate for part time.

Lawyers hours are measured. They fill in timesheets for billing purposes. There will also be codes for admin, performance management, training, internal meetings etc. The full number of hours they work each week will be accounted for.

It will be extremely rare that it’s 35 or 37.5 hours.