Occupational pension schemes for part-time workers: Equality in the eye of the beholder?
| Author | Sarah Knoops |
| DOI | 10.1177/1388262718819513 |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| Subject Matter | Articles |
Article
Occupational pension schemes
for part-time workers: Equality
in the eye of the beholder?
Sarah Knoops
University of Antwerp, Belgium
Abstract
Although much attention is given to the newer forms of atypical work, a large percentage of
employees still have a ‘classical’ part-time employment contract.
1
Despite long-standing legal
protection against discrimination, these part-time workers risk receiving less favourable treat-
ment. This article discusses the principle of non-discrimination in the field of occupational
pensions from the perspective of part-time employment. It aims to show the adverse impact that
seemingly neutral measures can have on the occupational pensions of part-time workers. By way
of illustration, two cases of the Court of Justice of the European Union: the Scho
¨nheit and Becker
case (length of service) and the Kleinsteuber case (split pension formula) are examined in detail. It
is further argued that, in Kleinsteuber, the CJEU appears to have broadened the possibilities of
justifying differential treatment. This tendency could threaten the efficiency of the principle of
equal pay and non-discrimination for part-time workers as regards occupational pensions.
Finally, the impact of these judgments on Belgian and Dutch occupational pension schemes is
examined.
Keywords
occupational pensions, discrimination, equal pay, part-time, length of service, Scho
¨nheit and Becker,
split pension formula, Kleinsteuber, Belgium, the Netherlands
Corresponding author:
Sarah Knoops, PhD researcher, University of Antwerp, Faculty of Law, Venusstraat 23, V.181, 2000 Antwerpen, Belgium.
E-mail: sarah.knoops@uantwerpen.be
1. According to Eurostat, the part-time employment rate in 2017 was 18.7%in the EU. In Belgium it was 24,2%and in the
Netherlands 46.6%of employees worked part-time. See: https://ec.europa.eu/eurostat/tgm/table.do?tab¼table&
plugin¼1&language¼en&pcode¼tesem100 (based on the EU Labour Force Survey) and Bogg (2016: 272).
European Journal of Social Security
2018, Vol. 20(4) 309–324
ªThe Author(s) 2019
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DOI: 10.1177/1388262718819513
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Introduction
In most European countries, the pension system can be defined as consisting of different pension
pillars. In addition to the state pension (first pillar), a growing number of employees benefit from
an occupational pension (second pillar). As these occupational pension schemes are offered by the
employer on a voluntary basis, the principle of non-discrimination plays a pivotal role in deter-
mining which differences between employees’ pension arrangements can be justified. In particular,
the status of workers with non-standard forms of employment is precarious, as they are often
excluded from the company pension scheme. Newer forms of atypical work may be excluded from
the benefits of an occupational pension scheme, but also the classical part-time worker can still
experience less favourable conditions.
This article presents the principle of non-discrimination from the perspective of a part-time
worker and reviews its implications for occupational pension schemes. It starts by outlining the
personal and material scope of the principle of non-discrimination against part-time workers. It
then examines the adverse impact of certain measures on part-time workers in the context of
occupational pensions and the possibility of the employer justifying such treatment, paying special
attention to the Scho
¨nheit and Becker
2
and the Kleinsteuber
3
cases. Finally, the current Belgian and
Dutch states of affairs are assessed and a conclusion is reached.
Who is a part-time worker?
The personal scope of the Part-time Work Directive
4
is clarified by defining a part-time
worker as ‘an employee whose normal hours of work are less than the normal hours of work
of a comparable full-time worker.’
5
The directive adopts a relative approach rather than an
absolute approach. This means that it does not specify a threshold with a maximum number of
hours of work for part-time employees. Instead, the number of working hours below which an
employee is considered to be working part-time will depend on the hours a full-time
employee works. Therefore, the number of hours can differ between the member states. The
normal hours of work are calculated on a weekly basis, or as an average over a period of
employment of up to one year.
Furthermore, the Part-Time Work Directive defines who can be a ‘comparable full-time
worker’.
6
One of the conditions is that the comparator holds the same type of employment contract.
This implies that although a ‘contract of part-time employment according to need’
7
will fall under
the scope of the directive,
8
it will be very hard to find a suitable comparator.
9
These conditions
2. C-4/02 and C-5/02 Scho¨nheit and Becker ECLI: EU: C:2003:583.
3. C-354/16 Kleinsteuber ECLI: EU: C:2017:539.
4. Clause 3.1 Part-time Work Directive.
5. This definition is similar to the one in the ILO Part-Time Work Convention, 1994 (No. 175).
6. For a further discussion on the personal scope of the Part Time Work directive, see M. Bell (2011: 254-279); Barnard
(2012: 433-435).
7. In the ILO-report (2016) referred to as ‘on-call work’.
8. Unless a member state used the possibility to exclude the part-time workers who work on a casual basis, offered by
Clause 2 (2) of the Part-time Work Directive. For a further discussion on the personal scope of the Part Time Work
directive, see Barnard (2012: 433-435).
9. C-313/02 Wippel ECLI: EU: C:2004:607, paras 59-68.
310 European Journal of Social Security 20(4)
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