In this case, the EAT upheld a tribunal's decision that the requirement for a part time worker to be available for work on proportionately more days than a full time worker was less favourable treatment.

The facts

Mrs Pinaud was employed by British Airways for about thirty years. She was initially employed on a full time basis, and started to work part time after a period on maternity leave.

Some long serving crew worked on a contractual working pattern. The full time pattern was called the "6/3 pattern" – six days off and three days on. Over the year, this means that the full time crew member was available for work 243 days and off for 122 days.

The part time pattern to which Mrs Pinaud had moved was called the "14/14 pattern". It was expressly described as a "50% contract", and the annual basic salary was 50% of that which the full time crew member received. The pattern was 14 days on and 14 days off and within the 14 days on, the part time crew member had to be available for 10 days. Over the year, this meant that the part time crew member had to be available for 130 days (i.e. 53.5% of the number of days on which a full time worker was required to be available).

Part time and full time crew members had to bid for work on available days. Actual hours could fluctuate and there was no clear pathway from days of availability to hours worked, or even precise days worked. The annual basic salary, however, did not vary with the number of duty hours.

Mrs Pinaud argued that, during her years as a part time worker, she had been treated less favourably on the grounds of her part time worker status because she had to be available for 53.5% of full time hours, but was paid only 50% of a full time salary. British Airways disagreed that there had been less favourable treatment, referring to statistics which showed that, broadly speaking, she had worked 50% of the hours of her comparator, and argued that any difference would be trivial. The tribunal agreed with Mrs Pinaud, and the EAT upheld the tribunal's decision on this, finding that there had been less favourable treatment.

While disagreeing that there had been less favourable treatment, British Airways argued that any less favourable treatment was justified. It said that its legitimate aim had been to provide a part time shift pattern which was workable, predictable, practical, flexible and popular with cabin crew to enable BA to run its business effectively and the cabin crew to organise their home lives efficiently. It also said that the impact on Mrs Pinaud had been limited because the statistics showed that she was not in practice required to work more hours than her full time comparator. The tribunal agreed that BA had a legitimate aim. However, it said that the statistics were irrelevant to the question of justification, and did not take them into account. It held that the less favourable treatment was not justified, because a non-discriminatory means of achieving the same legitimate aim would be to simply re-name the part time 14/14 contract as a part time 53.5% contract and pay an annual salary of 53.5% of the full time salary for the 6/3 working pattern.

The EAT agreed with the tribunal that BA had a legitimate aim. However, the EAT held that the tribunal was wrong to have regarded the statistical evidence as irrelevant to the question of justification. The EAT was sceptical of the Respondent's argument, but the judge thought that its case had to be addressed by looking at the statistics. Accordingly, the EAT 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 of the part time worker.

What does this mean for employers?

It is possible that BA's actions in this case may be justified (though the EAT expressed its scepticism about BA's arguments on this).

Employers should review policies, working practices and pay arrangements from time to time to make sure that they do not result in less favourable treatment of part time workers. If there is any less favourable treatment, employers should consider whether they have a legitimate business aim, and, if so, crucially whether there is a less discriminatory way of achieving that aim. If there is that less discriminatory approach, consideration should be given by employers to adopting this approach or face being unable to defend a claim.

British Airways v Mrs F Pinaud UKEAT/0291/16DA