In British Airways v Pinaud, the EAT upheld the decision of an employment tribunal that a parttime air crew member had been treated less favourably because of her part-time status, contrary to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The claimant was a long-serving member of air crew for British Airways who initially worked fulltime. She returned to work after a period of maternity leave and worked for a further 10 years on a part-time basis. Full-time crew members worked a pattern of six days on and three days off. Over a full year, full-time crew members had to be available for work on 243 days and were not required for 122 days. Part-time crew, including the claimant, worked a pattern of 14 days on and 14 days off. During the 14 days on, the crew member had to be available for 10 days. Over a full year this meant part-time crew had to be available for 130 days. There was a system of bidding for work on available days. Crew members could also be required for ground duties such as training or would have to be on standby during available days. While there was no clear link between available days and hours worked, the annual basic salary did not vary with the number of hours worked.

The claimant brought a claim under the Part Time Workers Regulations on the basis that she had been treated less favourably because she had to be available for 53.5% of full-time hours but was paid only 50% of full-time salary. The employment tribunal and the EAT agreed.

Of course, less favourable treatment under the Regulations may be justified on objective grounds. British Airways argued that its legitimate aim was to provide a 50% contract working pattern. It argued that the impact on the claimant was limited because its statistics showed that she was not in practice required to work more hours proportionately than her full-time comparator. The employment tribunal suggested that a less discriminatory means of achieving the legitimate aim of offering a flexible part time position would be to pay part time workers at 53.5% of full-time salary. But the EAT ruled that this was too simplistic an approach and remitted the question of justification to a freshly constituted tribunal for consideration of the statistical evidence put forward by British airways on the actual impact on the part-time worker.

The judgment is a reminder that employers should carry out an exercise to assess whether working practices discriminate against those who work part-time; should examine possible alternative approaches which have a less discriminatory impact on part-time workers; and consider whether any discriminatory practices are justifiable.