Employment Law Speed Read – 19/11/18
19th November, 2018
In British Airways Plc v Pinaud, the Court of Appeal considered whether a part-time worker had been treated less favourably than a comparable full-time worker, when she had been expected to be available for 53.5% of the full-time workers' hours, but had only received 50% of the full-time workers' salary.
Ms Pinaud commenced her employment with British Airways Plc on 24 June 1985 as a full-time cabin crew member and was promoted to the role of cabin crew purser in 1993. Following a period of maternity leave, Ms Pinaud requested a part-time contract.
Ms Pinaud worked under a ’14-14 contract’, this meant that she would be on duty for 14 days and then off duty for 14 days. Whilst on duty, Ms Pinaud was required to be available to work for 10 of the 14 days; this equated to Ms Pinaud being on duty for 130 days in a year. A comparable full-time worker worked under a ‘6-3 contract’, meaning that they would be on duty for 6 days, followed by 3 days off duty. This equated to being on duty for 243 days in a year.
As a result, Ms Pinaud was required to be available for 53.5% of the full-time hours, but only received 50% of the full-time salary. Ms Pinaud submitted a grievance to her employer alleging that she had been treated less favourably than a comparable full-time worker. Ms Pinaud’s grievance was rejected and was unsuccessful on appeal. Ms Pinaud brought a claim to the Employment Tribunal (ET).
The ET found in favour of Ms Pinaud and held that she had been treated less favourably than a comparable full-time worker. The ET stated that as Ms Pinaud was expected to be available to work for 130 days in a year, but was only paid 50% of the full-time salary, this amounted to less favourable treatment.
The ET accepted that the part-time shift pattern had a legitimate objective; however, the ET rejected the employer’s defence that the less favourable treatment was justified. The employer attempted to rely on statistics regarding the actual hours worked by Ms Pinaud; however, the ET held that they were irrelevant to liability. The ET suggested that the employer may have avoided the discrimination by paying Ms Pinaud, and the other part-time cabin crew pursers, 53.5% of the full-time salary. The employer appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal
The EAT upheld the finding of less favourable treatment, but remitted the issue of justification to a new tribunal. The EAT held that the ET had erred in its approach to justification and that the ET was wrong to disregard the statistics produced by the employer. The employer appealed to the Court of Appeal.
Court of Appeal
The Court of Appeal dismissed the appeal. The requirement that Ms Pinaud had to be available to work for 130 days in a year, but only receive 50% of the full-time salary, was on the face of it, less favourable treatment. The Court of Appeal held that any arguments regarding justification would be considered on remittal to the ET.
Regarding remedy, the Court of Appeal noted that if the Tribunal accepted the statistical evidence that Ms Pinaud had actually work fewer days pro rata than her full-time comparator, it would be “very surprising” to conclude that Ms Pinaud had suffered loss amounting to 3.5% of her total remuneration over the relevant period.
Whilst the implications of this case will largely depend upon the issue of justification which will be determined by a new tribunal; employers should examine the salary paid and hours worked by any part-time workers in contrast to full-time workers, to ensure that any differences can be objectively justified.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.