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Less favourable treatment of part-time workers

The Court of Appeal in the case of British Airways v Pinaud has considered a case of less favourable treatment of a part time worker.

Background

Ms Pinaud was employed as cabin crew by British Airways Plc. She worked part time and was required to be available for 130 days per year. Full time cabin crew were required to be available for 243 days per year. Although Ms Pinaud had to be available for 53.5% of a full time worker’s available days, she was only paid 50% of a full time salary.

After taking voluntary redundancy, Ms Pinaud brought a claim for less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The Law

Under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a part time worker has the right not to be treated less favourably than a full time worker.

When determining whether a part time worker has been treated less favourably than a full time colleague, the pro rata principle is applied. This means that a part time worker is entitled to receive not less than the proportion of pay or benefits that the number of his weekly hours bears to the number of weekly hours of the full time worker.

However, an employer can justify less favourable treatment of a part time worker if the less favourable treatment is a necessary and appropriate way of achieving a legitimate aim.

Decision

The Employment Tribunal found that Ms Pinaud had been subjected to less favourable treatment in being required to work 53.5% of a comparative full time employee’s hours while only receiving 50% of a full time salary. It went on to suggest that the discrimination could have been avoided by paying part time cabin crew 53.5% of full time salary.

British Airways appealed arguing that it had a legitimate aim to provide a 50% working pattern but that this could not be achieved exactly. It argued that statistics actually showed that Ms Pinaud had worked fewer days pro rata than her full time colleagues.

The Employment Appeal Tribunal (“EAT”) held that although a prima facie case of less favourable treatment was made out, the Employment Tribunal should have considered the practical impact of the less favourable treatment when deciding whether it was objectively justified or not. The case was therefore remitted to a new tribunal to consider the objective justification point.

British Airways appealed again to the Court of Appeal arguing that the EAT should not have upheld the Employment Tribunal’s prima facie finding of less favourable treatment.

The Court of Appeal dismissed the appeal. As Ms Pinaud was only paid 50% of a comparative full time workers salary but was required to be available for 130 days and not 121.5 days (which would have been 50% of the full time worker’s available days) it held that the Employment Tribunal had been right to find a prima facie case of less favourable treatment.

The case will now be remitted to the Employment Tribunal to consider the objective justification point.

Comment

This is a very important case for British Airways as 628 similar employment tribunal claims have been stayed pending the outcome of this case.

Part time employees should not be treated any less favourably than full time employees and any less favourable treatment should be carefully justified and documented.

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