The law says that part-time workers cannot be treated less favourably than full-timers. In British Airways v Pinaud, the Court of Appeal held that it was clearly 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. On the same date she submitted a written grievance complaining that she had been discriminated against as a part-time worker, because although she was paid exactly 50 per cent of a full-time salary, she was required to be available to work 53.5 per cent of the time.
After her grievance was rejected, she brought a tribunal complaint arguing that 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 such 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.
Regulation 5(1) (a) states that a part-time worker has the right not to be treated less favourably than a comparable full-time worker in relation to the terms of their contract.
Regulation 5(2) states that the right set out in paragraph (1) applies only if (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment cannot be justified on objective grounds.
Tribunal and EAT decisions
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. Although it agreed that BA had a legitimate aim, it held the less favourable treatment was not a necessary or appropriate means to achieve it. In other words, it could not justify the difference in treatment as all it 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. The EAT agreed that the tribunal was correct that Ms Pinaud had been subject to less favourable treatment but remitted the issue of justification to a newly constituted tribunal. BA appealed the finding of less favourable treatment.
Court of Appeal decision
Rejecting the appeal, the Court held that requiring Ms Pinaud to be available for 130 days rather than 121.5 days for a full-time worker clearly constituted less favourable treatment of a part timer.
The case now goes back to the tribunal again to hear BA’s justification defence. If that is rejected, then the tribunal will have to consider the issue of compensation. The Court of Appeal has already said, however, that it would “be a very surprising conclusion” if the tribunal then went on to award compensation of 3.5 per cent of her total remuneration over the ten-year period if it turns out that she actually worked fewer pro rata days than her comparator.