The law says that part-time workers cannot be treated less favourably than full-timers. In British Airways v Pinaud, the Employment Appeal Tribunal (EAT) held that it is less favourable treatment for an employer to require a part-timer to work more than half of the hours of a full-timer but only pay them half of the salary.
Ms Pinaud started working full time for BA in 1985. On her return from maternity leave in 2005 she went part time until she took voluntary redundancy in 2015. As a full-time crew member, she had to be available for work 243 days of the year; while as a part-timer she had to be available for 130 days. In other words, 3.5 per cent more days proportionately than a full-timer. Nevertheless, her part-time contract was expressly described as a 50 per cent contract, and her annual basic salary was exactly half of the full-time salary.
Ms Pinaud claimed that, as she was required to work 3.5 per cent more than a full-time worker; and regularly had to work more than 50 per cent of the duty hours of a full-time employee, despite receiving 50 per cent of the salary, she had been treated less favourably contrary to regulation 5(1)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
BA argued that as both full-time and part-time crew members had to “bid” for work with the result that actual hours worked could fluctuate, the annual basic salary of both part timers and full timers did not vary with the number of duty hours.
The tribunal found that as Ms Pinaud had to be available for 53.5 per cent of the days on which her comparator had to be available, but was only paid 50 per cent of her salary, she had been treated less favourably within the meaning of regulation 5(1)(a).
Although BA had a legitimate objective – to provide a part-time shift pattern which was workable, practical, predictable, flexible and popular with cabin crew - the less favourable treatment was not a necessary or appropriate means to achieve it. All the company had to do to remove the anomaly was to pay an annual salary of 53.5 per cent of the full-time salary.
BA appealed, arguing that the tribunal was wrong to ignore its statistical evidence showing that in practice Ms Pinaud and her comparator worked more or less the same number of hours. Even if there was unfavourable treatment, their evidence showed that the impact on pay was minimal.
Although the tribunal took the correct approach to less favourable treatment, the EAT held that it was wrong to disregard BA’s statistical evidence on the question of justification.
Having accepted that the unfavourable treatment had a legitimate objective, the tribunal seemed to think that the mere fact that Ms Pinaud had to be available to work on proportionately more days than her comparator meant that the statistics were irrelevant. Instead it should have looked at the extent to which those extra days impacted on her in order to conclude whether the measure was proportionate or not.
Likewise it did not make sense for the tribunal to suggest that increasing the salary would resolve the discrimination without asking whether the unfavourable treatment did work its way through into the amount of work she did.
The EAT therefore upheld the decision on less favourable treatment but remitted the question of justification to a newly constituted tribunal.