Published: 10 October 2017
The recent case of British Airways (“BA”) v Pinaud
serves as a reminder that discrimination of part-time workers is unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”) but that employers might avoid pay-outs if such treatment can be objectively justified.
The case involved a BA crew member who, upon returning from maternity leave, became a part-time worker. Like other part-time workers, she was contracted to work 14 days on, 14 days off. The airline’s full-time staff were scheduled to work 6 days on, 3 days off. These work patterns meant that the full-time staff were required to be available for 243 days of the year, whereas those working part-time were required to be available for 130 days. Therefore, the requirement of availability for part-time employees amounted to 53.5% of that of BA’s full-time workers. However, those part-time workers were only paid 50% of full-time salary.
Ms Pinaud issued a claim against BA that she had been subjected to less favourable treatment under Regulation 5 of the PTWR, which the airline defended. The Tribunal found in favour of the Claimant and BA appealed.
The Employment Appeal Tribunal (“EAT”) dismissed BA’s appeal against less favourable treatment, finding that the Employment Tribunal had correctly approached the question of whether the Claimant, as a part-time worker, was treated less favourably by the Respondent than it treated a full-time comparator. The EAT concluded that a policy of paying a part-time employee 50% of FTE salary when they work more than 50% of the full-time hours is unfavourable treatment towards part-time employees.
However, the EAT held that it was not clear whether this payment policy was, on the facts, discriminatory or a proportionate means of achieving a legitimate aim. In this instance, the matter was referred back to the Tribunal, in order to determine whether the policy was justified. The EAT made clear that if statistical evidence is available, this can be used by employers to support their argument and the Tribunal should have considered that evidence, if put forward by BA.
This case provides a message to employers that hours and pay of part-time workers should be comparative to that of full-time workers. Employers should be especially conscious where part-time employees are paid a set basic pay, when they work variable hours. Employers should keep a log of hours worked, to ensure that part-time members of staff are paid the correct amount, when compared to a comparable full-time worker. If contractual consistency is not possible, employers should record the aim they are looking to achieve with the arrangement which they have implemented. They should use statistical evidence, such as comparisons with full-time employees, to show that the aim is being implemented proportionately. The EAT made it clear that merely increasing the part-time employee’s salary would not necessarily suffice, and that the impact of the arrangement on individuals would need to be assessed on a case-by-case basis, in order to establish whether the strategy was proportionate, in achieving the employer’s aim.
Should you require any assistance with part-time working arrangements then please don’t hesitate to contact a member of our employment team.