Pensions in 30: 23. Discrimination against part-time and fixed term workers

The Month in Pensions - Gowling WLG

Part one - discrimination and part-time employees

Key points

• A part-time worker must not be treated less favourably than a comparable full-time worker doing the same or largely the same job unless the less favourable treatment can be objectively justified.
• This extends to less favourable treatment in respect of the provision of pension benefits.
• A part-time worker can bring a claim for less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
• The other potential claim a part-time worker can bring in relation to pensions discrimination is a claim for indirect sex discrimination under the Equality Act 2010.
• Preston v Wolverhampton Healthcare NHS Trust clarified that men or women excluded from their employer's pension scheme on grounds of indirect sex discrimination are entitled to claim access to the pension scheme.
• ‘Off-sets’ (notional deductions equal to the basic state pension made from a worker’s salary to calculate contributions and pension benefits) may be indirectly discriminatory but are capable of objective justification.

Part two - Discrimination and fixed-term employees

Key Points

• Fixed-term employees must not be treated less favourably than a comparable permanent employee doing the same or largely the same job unless the less favourable treatment can be objectively justified.
• This extends to less favourable treatment in respect of the provision of pension benefits.
• A fixed-term employee can bring a claim for less favourable treatment under the Fixed-term employees (Prevention of Less Favourable Treatment) Regulations 2002.
• Employers may be able to defend a specific unfavourable practice by demonstrating that the fixed-term employee's overall benefits package is comparable to their permanent employee comparator.
• In order to rely on objective justification the employer would have to demonstrate that the less favourable treatment amounted to a legitimate aim and that the less favourable treatment was a proportionate method of achieving that legitimate aim.

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