In the recent case of British Airways plc v. Pinaud, the Court of Appeal had to decide whether a part-time worker who was required to be available for proportionally more days than her full-time comparator was treated less favourably, contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Under Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), a part-time worker has the right not to be treated less favourably than a comparable full-time worker. This includes in regard to contract terms (such as pay, holiday allowance etc.) or by being subjected to any other detriment by any act, or deliberate failure to act, by their employer.
In determining whether a part-time worker has been treated less
favourably, a Tribunal will apply the pro rata principle i.e.,
where a comparable full-time worker is in receipt of pay or any
other benefit, a part-time worker should not receive less than the
proportion of that pay or other benefit than the amount of weekly
hours they work in comparison to their full time comparator.
An employer is, however, able to justify less favourable treatment if it can demonstrate that the treatment is a necessary and appropriate way of achieving a legitimate objective.
Ms Pinaud was employed as a part-time cabin crew purser by British Airways (BA). Her shift pattern was such that she was on duty for 14 days and off duty for 14 days. In the 14-day "on duty" period she had to be available for work for 10 of the days, and was therefore available 130 days per year. Her full time-time comparator worked six days on and three days off and had to be available 243 days per year. This meant that Ms Pinaud was available for 53.5 per cent of a comparable full-time worker's hours but received only 50 per cent of the salary.
In 2015, shortly after taking voluntary redundancy, Ms Pinaud brought a grievance alleging she had suffered less favourable treatment. This grievance was rejected and Ms Pinaud subsequently brought a claim under the PTWR.
The Employment Tribunal
The Tribunal in the first instance upheld Ms Pinaud's claim. The Tribunal found that, although there was a legitimate objective in the part-time shift pattern, the treatment could not be justified as it was not a necessary or appropriate means of achieving the objective. In arriving at its conclusion, the Tribunal suggested that discrimination could have been avoided if Ms Pinaud had just been paid 53.5 per cent of a full-time salary.
BA argued that the statistics showed that Ms Pinaud, although "on duty" for proportionally more time, actually worked fewer days pro rata than her full-time comparator. The Tribunal dismissed the statistics as irrelevant to the issue of liability. BA appealed to the EAT.
The EAT held that, while less favourable treatment had occurred, the Tribunal in the first instance had failed to assess the practical impact of the treatment when deciding if it was objectively justified. BA's argument that Ms Pinaud worked fewer hours than her comparator needed to be addressed and the EAT remitted the case back to the Tribunal to consider this point further. BA, however, appealed the less favourable treatment limb of the decision.
The Court of Appeal
The Court of Appeal agreed with the EAT in that less favourable treatment had occurred and dismissed BA's appeal. It held that any arguments as to the advantages of Ms Pinaud's part-time contract (i.e. the fact that she worked proportionally fewer hours) were relevant only to justification. The issue of justification is now to be considered by a freshly convened Tribunal on remittal.
While the decision of the Court of Appeal does not come as a great surprise given the fact that Ms Pinaud was paid less but required to be available for proportionally more time than her full-time comparator, BA may still be able to defend the claim if it can convince the Tribunal that Ms Pinaud's shift pattern was not detrimental to her.
This is a test case and very import to BA as there are 628 similar Tribunal claims which have been stayed pending the outcome of this appeal. If Ms Pinaud's claim is upheld it is possible that she will receive 3.5 per cent of her salary and further pension contributions for the 10 years she worked part-time.
Although fact-specific, this case serves as a good reminder that employers should examine the hours worked by and salary paid to part-time employees and ensure, to the greatest extent possible, that there is consistency in the treatment with their full-time counterparts. If this cannot be done, employers will need to show they have a legitimate business aim for the difference in treatment and that they can objectively justify any difference in treatment to avoid the risk of successful claims under the PTWR.
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