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Written by Brabners LLP
As you may know, a part-time worker has the legal right not to be treated less favourably than the employer treats a comparable full-time worker in certain respects. This includes, for example, less favourable treatment in relation to the terms of their contract or by them being subjected to other detriments.
Any less favourable treatment by an employer will be discriminatory unless the employer can show that it is justified on objective grounds for legal purposes. So how does an employer do that? Well, they must be able to show that any less favourable treatment is a necessary and appropriate way of achieving a legitimate aim by the employer. This can sometimes be tricky to do as British Airways has found out!
In the recent case of British Airways v Pinaud, the Court of Appeal (“CA”) upheld a tribunal decision that it was less favourable treatment to pay a part-time worker 50% of full pay for being on duty 53.5% of full-time hours, despite the employer trying to argue otherwise and that it was justified. Although, the CA did refer the issue of whether the treatment was justified back to a new tribunal, which leaves some questions unanswered about pay. Read on for more details!
Ms Pinaud was employed by British Airways plc (“BA”) as a cabin crew purser. She worked under a part-time contract, doing 14 days on and 14 days off, and had to be available for work 130 days each year. A comparable full-time worker would have been on duty for 6 days on and 3 days off, which amounts to the full-time worker having to be available for 243 days a year.
Ms Pinaud had to be available for 53.5% of the days of a full-time worker, but she received only 50% of the pay. After taking voluntary redundancy, Ms Pinaud brought an employment tribunal claim for less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. For ease, we will refer to it as the PTW Regulations.
The employment tribunal upheld Ms Pinaud’s claim. The tribunal agreed that she had been subjected to less favourable treatment in being required to work more than 50% of the hours of a full-time comparator, but only receiving 50% of the salary. The tribunal held that this was not a necessary or appropriate means of achieving the legitimate objective of the part-time shift pattern. Interestingly, the tribunal confirmed that the discrimination could have been avoided by paying the part-time workers 53.5% of the full-time salary.
BA appealed to the Employment Appeal Tribunal (“EAT”), which upheld that there had been less favourable treatment, but questioned whether the treatment was objectively justified or not. BA then appealed again to the CA against this decision.
The CA dismissed the appeal, agreeing with the earlier tribunals that paying part-time workers less than full-time workers for comparative work amounted to less favourable treatment. However, the court raised further questions about whether the treatment was justified and this issue must now be considered further by a new tribunal.
At the EAT, BA argued that its legitimate aim was to provide a workable 50% working pattern, something which could not be achieved exactly since the year was not precisely divisible. A new employment tribunal must now examine in detail, using statistics where appropriate, the practical impact of the differential treatment on Ms Pinaud and other part-time members of cabin crew. It must also consider the objective justification test further in this context.
This decision will be important for BA as 628 of Ms Pinaud’s colleagues have brought similar claims under the PTW Regulations. These other claims have been stayed pending the outcome of this case. This case acts as a reminder to employers of the need to consider any differential treatment applied to part-time workers carefully and what justifications they would rely on for such treatment. The scope for justifying the less favourable treatment is normally construed narrowly by the courts and issues around pay in particular will be more likely to result in claims in our view. If in doubt, employers would be wise to seek legal advice on the matter!
This bulletin is for general guidance purposes only and should not be used for any other purpose.