In the case of British Airways plc v Pinaud, the Court of Appeal (“CA”) held that a worker who was required to work 53.5% of full-time hours but was only paid 50% of full-time pay had been treated less favourably.
The Claimant, Ms Pinaud, was employed by British Airways as a cabin crew purser. She worked part-time whereby she was on duty for 130 days per year, whereas full-time workers had to work 243 days per year. Accordingly, the Claimant had to be available for 53.5% of a full-time worker’s hours, however she was only paid 50% of a full-time worker’s salary.
The Claimant brought a claim for less favourable treatment.
An Employment Tribunal (“ET”) held 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, despite receiving only 50% of the salary. The ET suggested that discrimination could have been avoided by paying part-time pursers 53.5% of a full-time salary.
British Airways appealed to the Employment Appeal Tribunal (“EAT”), however the EAT upheld the ET’s ruling. The EAT held that the Claimant had been subjected to less favourable treatment, however it stated that the ET had erred by failing to assess the practical impact of that treatment when deciding whether it was objectively justified.
When determining whether a worker has been treated less favourably on the ground of their part-time status, a court should consider whether the treatment is justified – less favourable treatment will not be unlawful if it can be objectively justified. Therefore, a worker will not have been treated less favourably if an employer can prove that the less favourable treatment is a necessary and appropriate way of achieving a legitimate objective.
British Airways argued that statistics showed that the Claimant actually worked fewer days pro-rata than her full-time comparator and that subsequently the less favourable treatment was justified. This was due to the fact that the Claimant was on duty for 14 days and off duty for the next 14 days, however she was only required to be available for work on 10 out of the 14 “on duty” days. However, “available for work” did not usually mean her having to work on each of the 10 days.
British Airways appealed to the CA, however their appeal was rejected. The Court of Appeal found that there was, on the face of it, less favourable treatment in the contractual arrangements and sent the case back to a different tribunal to look at objective justification. It expressed scepticism about British Airways argument on justification but also commented that if British Airways statistical evidence was accepted, it would be surprising if a tribunal found that Ms Pinaud’s loss was as much as 3.5% of her total remuneration over the ten-year period in question (which would have been £50,000 in total).
It will be interesting to see how the objective justification element of this case is decided. The decision will be important in terms of remedy as the Claimant could be entitled to compensation in the region of £50,000 if British Airway’s justification for the less favourable treatment fails. In addition, 628 of the Claimant’s colleagues have presented similar claims which have been stayed pending the outcome of this case.
With an increase in flexible working arrangements and part-time working, employers need to pay careful attention to the pay and benefits offered to, and hours worked by, part-time employees in comparison to their full-time equivalents. If there is a difference, documented reason(s) for it and records to support the reasoning will be crucial.
Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law on 029 2034 5511 or employment@berrysmith.com.