The Court of Appeal has held that Ms Pinaud, a part-time member of cabin crew who was required to be available for 53.5% of the hours of her full-time comparator, but was paid 50% of the full-time salary, was treated less favourably under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 – British Airways plc v Pinaud.
Under Ms Pinaud’s contract she was required to be on duty for 14 days and off duty for 14 days with a total on duty availability of 130 days per year whereas her full-time comparator worked six days on and three days off with availability totalling 243 days per year. This meant she had to be available for 53.5% of the comparable full-timer’s hours but was paid 50% of the salary. She brought a claim under the Part-time Workers Regulations.
Her claim for less favourable treatment was upheld by the tribunal, EAT and now the Court of Appeal. On justification, however, the EAT remitted the case back to the tribunal to look at the practical impact of the statistics BA had provided which indicated she actually worked fewer days pro rata than her full time comparator. The Court of Appeal commented that there may be advantages to the part-time contract which could be sufficient to establish justification. It also stated that if BA was unable to justify the shift pattern, the impact of working proportionately fewer should be taken into account at the remedy stage. The Court considered it would be “very surprising” for the tribunal to conclude that the loss she had suffered would amount to the value of the infringement i.e. 3.5% of her remuneration over the relevant period if it had also accepted that she worked fewer days pro rata than her comparator.
The decision on less favourable treatment is not surprising as she was able to establish that pro-rata she was paid less but required to available for proportionately more time than her full-time comparator. BA was understandably concerned about the remark by the tribunal that paying her 3.5% of her total remuneration was a way of resolving the discrimination where in reality she had worked less days than her comparator as this amounted to £50,000 for the 10 year period of her employment. This is a test case and very important for BA as 628 of Ms Pinaud’s colleagues have claims stayed pending the outcome of this case.
Although the case is very fact specific, it is also a reminder to employers to ensure that if at all possible, there is consistency between the treatment of full-timers and part timer workers in relation to their pay and other contractual terms, policies and practices. If this is not possible, the employer will need to demonstrate it has a legitimate business aim for the difference in treatment and that there is no less discriminatory way of achieving that aim otherwise it will be at risk of a successful claim against it.