In this short update, we cover the Court of Appeal’s decision in British Airways Plc v Pinaud. The case covers the law relating to part-time workers and is a very important test case - 628 similar employment tribunal claims against British Airways Plc by cabin crew have been stayed pending its outcome.

Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations), part-time workers have a right not to be treated less favourably than comparable full-time workers.

An employer will be able to justify any less favourable treatment of a part-time worker if the less favourable treatment:

  1. aims to achieve a legitimate objective;
  2. is necessary in order to achieve that objective; and
  3. is an appropriate way of achieving that objective.

The claimant worked as cabin crew for British Airways Plc. She had to be available for 53.5% of the hours of a comparable full-time worker, but received only 50% of the full time worker’s salary.

After taking voluntary redundancy in 2015, the claimant brought an employment tribunal claim for less favourable treatment under the Regulations. Her claim was upheld by the employment tribunal.

The tribunal considered that, whilst the part-time shift pattern had a legitimate objective, it was not a necessary or appropriate means of achieving that objective. The claimant could have been paid 53.5% of an equivalent full-time salary.

British Airways Plc appealed to the Employment Appeal Tribunal (the EAT). The EAT held that, whilst less favourable treatment was made out, the tribunal had failed to assess the practical impact of the less favourable treatment when deciding whether it was objectively justified or not. British Airways Plc’s position was that the claimant worked fewer days pro rata than her full-time comparator.

Whilst the EAT was uncertain whether British Airways Plc’s argument would succeed (if part-time workers had to be available for a greater day number of days, this could necessarily have a significant impact on them), it considered that the argument needed to be addressed when assessing whether the less favourable treatment was justified. The question of justification was remitted to a fresh tribunal.

British Airways Plc appealed to the Court of Appeal, arguing that the EAT had made an error in upholding the tribunal’s finding of less favourable treatment (subject to any less favourable treatment then being objectively justified).

The Court of Appeal’s Decision

The Court of Appeal dismissed British Airways Plc’s appeal. The fact that the claimant was paid 50% of a full-time comparator’s salary, and yet had to be available for a proportionately greater number of days per year, was less favourable treatment in the first instance.

The Court of Appeal noted that there may be advantages to the part-time contract. These advantages could, potentially, be sufficient to establish the justification defence. However, that was a matter for the tribunal to consider on remittal.

The final outcome of the case has potentially far-reaching consequences for British Airways Plc. It is also a reminder to employers of potential claims for less favourable treatment that may be made by part-time workers.

With increasing numbers of workers working on a part-time basis, employers should conduct regular audits of their workforce to ensure that part-time workers are treated the same as comparable full-time workers. If an employer considers that any less favourable treatment can be objectively justified, they should seek legal advice. If the legal advice supports the employer’s position, the objective justification being relied on should be documented in case of future litigation.

The employment tribunal’s decision is awaited. It will be interesting to see if British Airways Plc can convince the tribunal, on remittal, of its legitimate aim of providing a workable 50% working pattern - something which could not be achieved exactly. If the statistical evidence produced by British Airways Plc about part-time workers working fewer days pro rata is accepted, interesting questions are raised regarding remedy if the justification defence is rejected. Watch this space for a further update.