08 Nov 2018

In British Airways plc v Pinaud [2018] EWCA Civ 2427, the Court of Appeal had to decide whether a part-time worker was treated less favourably when she worked 53.5% of full-time hours but received 50% of full-time pay.

Background

Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) provides that a part-time worker has the right not to be treated by his employer less favourably than a comparable full-time worker as regards the terms of his contract or by being subjected to any detriment by any act or deliberate failure to act. This right only applies if the treatment is on the ground that the worker is a part-time worker and the treatment is not justified on objective grounds.

Facts

Ms Pinaud was employed by British Airways plc (BA) on a part-time basis as a cabin crew purser. She was on duty for 14 days and off duty for 14 days. Within that 14 day period, she had to be available for work for 10 days. This meant that she was available for work for 130 days per year. Her full-time comparator worked six days on and three days off so was available for 243 days per year. Ms Pinaud was paid 50% of the full-time salary but was expected to be available for 53.5% of the full-time hours. After taking voluntary redundancy, Ms Pinaud brought a grievance alleging less favourable treatment under the PTWR. Her grievance and appeal were rejected so she brought an employment tribunal (ET) claim.

Employment tribunal decision

The ET upheld her claim, finding that the pay differential was less favourable treatment under the PTWR. There was a legitimate objective in the part-time shift pattern but the treatment could not be justified because it was not a necessary or appropriate means of achieving the objective. The same aim could be achieved by simply paying a salary of 53.5% of the full-time salary. BA appealed.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal (EAT) upheld the ET's finding of less favourable treatment but remitted the question of justification to a new ET. BA appealed the less favourable treatment decision.

Court of Appeal decision

The Court of Appeal dismissed the appeal. Ms Pinaud had to be available for work 130 days per year. Her full-time comparator had to be available for 243 days per year. Ms Pinaud was paid 50% of her comparator's salary but had to be available for 53.5% of her comparator's hours. The terms of her contract were therefore less favourable than her full-time comparator. The Court of Appeal agreed with the EAT that the case should be remitted to the ET for the question of justification to be decided. If a justification defence is rejected, the ET will go on to decide on remedy.

Comment

While it may seem logical that a part-time employee working 53.5% of full-time hours should receive 53.5% of full-time pay, BA may be able to establish a justification defence if it can show that there are advantages to the part-time worker from the shift pattern of 14 days on and 14 days off. BA had argued that Ms Pinaud worked fewer days pro rata than her full-time comparator so this will also need to be taken into account.

There are 628 similar ET claims against BA, which were stayed pending the outcome of this appeal. This case is regarded by BA and the unions to which the cabin crew belong as a test case. If the ET upholds Ms Pinaud's claim and awards her 3.5% of salary and pension contributions for the 10 years while she worked part-time, that will equate to more than £50,000 in her case alone (according to her schedule of loss), which explains why BA took the case to the Court of Appeal. 

Employers should examine the hours worked by and salary paid to part-time employees as compared with full-time employees and ensure that they can objectively justify any differences in treatment in order to avoid falling foul of the PTWR.