Court of Appeal holds purser paid 50% of full-time pay when available for work for more than 50% of full-time hours was less favourably treated.

The case of British Airways Plc v Pinaud concerned a long-serving member of air crew for British Airways (BA). On returning to work after a period of maternity leave, she moved from full-time to part-time hours.

Over a year, full-time crew members had to be available for work on 243 days. Part-time crew, including the claimant, had to be available for 130 days. Crew members could be required for ground duties such as training or were on standby during available days. There was no clear link between available days and hours worked and the annual basic salary did not vary with the number of hours worked.

The claimant brought a claim under the Part Time Workers Regulations 2000 on the basis that she had been treated less favourably because she had to be available for 53.5% of full-time hours but was paid only 50% of full-time salary. The tribunal found that Ms Pinaud had been less favourably treated and disregarded evidence from BA that she had not actually worked more than 50% of full time hours. It commented that she should have been paid 53.5% of full time pay over the ten years during which she had worked part-time.

The EAT agreed that the treatment was less favourable but remitted the question of justification to a freshly constituted tribunal. It determined that the tribunal should not have disregarded evidence about the actual financial impact on the claimant. An employer can justify discrimination of part-time workers if the less favourable treatment is a means to achieve a legitimate objective, is necessary in order to achieve that objective and is an appropriate way of achieving that objective. We reported on the EAT judgment in this case in September 2017. This report is available here.

The Court of Appeal agreed with the EAT. It also commented that it would be surprising (should the claimant win her claim) if Ms Pinaud were to be awarded compensation on the basis that she should have been paid 53.5 of full time pay when she had not actually worked 53.5% of full time hours. BA may well be relieved by this comment as 628 similar claims have been stayed pending the outcome of this case.

In this case the differential may seem slight, but the fact it exists means that the employer can be required to justify it.

It is important that employers consider whether their working practices might discriminate against those who work part-time; whether they could make alternative arrangements which have a less discriminatory impact on part-time workers; and whether any discriminatory practices are justifiable as a necessary and appropriate means to achieve a legitimate objective.

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