A recent UK Court of Appeals decision on how part-time workers should be treated could open the floodgates for possible claims against national airline, British Airways (BA).
The ruling in the British Airways plc v Pinaud [2018] EWCA Civ 2427 case stated that the part-time worker concerned was entitled to be treated no less favourably than a comparable full-time worker in either employment contract terms, or by being subject to other detriment by any act, or deliberate failure to act, on the part of their employer. Part-timers must also identify an equivalent full-timer against which a comparison can be made.
What this means in practice is that part-time workers are entitled to the same terms on a pro rata basis as a full-time worker carrying out the same role, unless such a situation would be inappropriate. For example, as it would not usually be appropriate to pro rata healthcare, a part-timer would generally be entitled to the same benefits as a full-time worker. Put another way, part-time workers are entitled to an equivalent proportion of pay, benefits and annual leave, based on the amount of time they have worked.
The Appeals Court ruling came about after Ms Pinaud, a part-time member of BA’s cabin crew, was required to make herself available for work for 53.5% of the hours of her full-time comparator, while only being paid 50% of the equivalent full-time salary. As a result, the Court held that Pinaud was treated less favourably under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Pinaud’s contract meant she was obliged to be on duty for 14 days and off duty for 14 days, with a total on-duty availability of 130 days per year. Her full-time comparator, on the other hand, worked six days on and three days off, with her on-duty availability totalling 243 days per year.
In other words, Pinaud had to be available for 53.5% of the comparable full-timer’s hours but was paid only 50% of their salary. As a result, she brought a claim under the Part-time Workers Regulations.
A need for justification
Before going to the Court of Appeal, her claim regarding less favourable treatment had previously been upheld by the Tribunal and the Employment Appeals Tribunal (EAT) – although in relation to BA’s justification, the EAT had remitted the case back to the Tribunal in order to explore the practical impact of the statistics provided by the airline.
These statistics indicated that Pinaud had actually worked fewer days pro rata than her full-time comparator. Therefore, the Court of Appeal said the part-time contract could offer advantages, which would be sufficient to establish justification.
But it also stated that if BA was unable to justify the shift pattern described, the impact of working proportionately fewer days should be taken into account at the remedy stage. The Court finished by saying it would be “very surprising” if the Tribunal concluded that the loss suffered by Pinaud amounted to the value of the infringement – that is, 3.5% of her remuneration over the relevant period - if it also accepted that she worked fewer days pro rata than her comparator.
As a result, the Appeal Court’s decision on less favourable treatment was not unexpected as Pinaud was able to establish that, on a pro-rata basis, although she was paid less than her full-time comparator, she was required to make herself available for work proportionately more of the time.
BA was understandably concerned by the Tribunal’s remark that paying her 3.5% of her total remuneration was a way of resolving the discrimination case, however, when in reality she worked less days than her comparator. Over the 10-year period of her employment, this payment amounted to a sum of £50,000.
Therefore, as a test case, this ruling is very important for BA, not least because 628 of Pinaud’s colleagues have also had claims stayed, pending the outcome of this one.
Meanwhile, despite being very fact-specific, this case is also a reminder to other employers to ensure that, if at all possible, there is consistency between how they treat full-time and part-time workers in relation to their pay and other contractual terms, policies and practices. If it is not possible, employers will need to demonstrate that the differing treatment has a legitimate business aim and there is no less discriminatory way of achieving their goal. Otherwise they could be at risk of a successful claim being made against them.
Emma Bartlett is a partner at Charles Russell Speechlys LLP. She advises on all aspects of employment law and has particular expertise in dispute resolution and litigation, notably discrimination, whistleblowing and trade union issues. With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker.
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A recent UK Court of Appeals decision on how part-time workers should be treated could open the floodgates for possible claims against national airline, British Airways (BA).
The ruling in the British Airways plc v Pinaud [2018] EWCA Civ 2427 case stated that the part-time worker concerned was entitled to be treated no less favourably than a comparable full-time worker in either employment contract terms, or by being subject to other detriment by any act, or deliberate failure to act, on the part of their employer. Part-timers must also identify an equivalent full-timer against which a comparison can be made.
What this means in practice is that part-time workers are entitled to the same terms on a pro rata basis as a full-time worker carrying out the same role, unless such a situation would be inappropriate. For example, as it would not usually be appropriate to pro rata healthcare, a part-timer would generally be entitled to the same benefits as a full-time worker. Put another way, part-time workers are entitled to an equivalent proportion of pay, benefits and annual leave, based on the amount of time they have worked.
The Appeals Court ruling came about after Ms Pinaud, a part-time member of BA’s cabin crew, was required to make herself available for work for 53.5% of the hours of her full-time comparator, while only being paid 50% of the equivalent full-time salary. As a result, the Court held that Pinaud was treated less favourably under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Pinaud’s contract meant she was obliged to be on duty for 14 days and off duty for 14 days, with a total on-duty availability of 130 days per year. Her full-time comparator, on the other hand, worked six days on and three days off, with her on-duty availability totalling 243 days per year.
In other words, Pinaud had to be available for 53.5% of the comparable full-timer’s hours but was paid only 50% of their salary. As a result, she brought a claim under the Part-time Workers Regulations.
A need for justification
Before going to the Court of Appeal, her claim regarding less favourable treatment had previously been upheld by the Tribunal and the Employment Appeals Tribunal (EAT) – although in relation to BA’s justification, the EAT had remitted the case back to the Tribunal in order to explore the practical impact of the statistics provided by the airline.
These statistics indicated that Pinaud had actually worked fewer days pro rata than her full-time comparator. Therefore, the Court of Appeal said the part-time contract could offer advantages, which would be sufficient to establish justification.
But it also stated that if BA was unable to justify the shift pattern described, the impact of working proportionately fewer days should be taken into account at the remedy stage. The Court finished by saying it would be “very surprising” if the Tribunal concluded that the loss suffered by Pinaud amounted to the value of the infringement – that is, 3.5% of her remuneration over the relevant period - if it also accepted that she worked fewer days pro rata than her comparator.
As a result, the Appeal Court’s decision on less favourable treatment was not unexpected as Pinaud was able to establish that, on a pro-rata basis, although she was paid less than her full-time comparator, she was required to make herself available for work proportionately more of the time.
BA was understandably concerned by the Tribunal’s remark that paying her 3.5% of her total remuneration was a way of resolving the discrimination case, however, when in reality she worked less days than her comparator. Over the 10-year period of her employment, this payment amounted to a sum of £50,000.
Therefore, as a test case, this ruling is very important for BA, not least because 628 of Pinaud’s colleagues have also had claims stayed, pending the outcome of this one.
Meanwhile, despite being very fact-specific, this case is also a reminder to other employers to ensure that, if at all possible, there is consistency between how they treat full-time and part-time workers in relation to their pay and other contractual terms, policies and practices. If it is not possible, employers will need to demonstrate that the differing treatment has a legitimate business aim and there is no less discriminatory way of achieving their goal. Otherwise they could be at risk of a successful claim being made against them.
Emma Bartlett is a partner at Charles Russell Speechlys LLP. She advises on all aspects of employment law and has particular expertise in dispute resolution and litigation, notably discrimination, whistleblowing and trade union issues. With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker.
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