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14 January 2019

140: British Airways deemed to have treated part-time cabin crew ‘less favourably’ than full-time cabin crew

Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, employers must not treat part-time workers less favourably than comparable full-time workers. Part-time workers are therefore entitled to pro-rata pay, holiday and other benefits. However, less favourable treatment can be justified if it is a necessary and appropriate way of achieving a legitimate objective.

In British Airways plc v Pinaud, the Court of Appeal has confirmed that requiring a part-time worker to be available for work 53.5% of the time that a full-time worker in a comparative role was required to be available constituted less favourable treatment because the part-time worker was paid only 50% of the full-time salary.

Ms Pinaud, a part-time cabin crew purser, worked on a 14 days on, 14 days off shift pattern. Within the 14 days on, she had to be available for 10 days which meant that, over a year, she had to be available for 130 days. Full-time pursers worked shifts of six days on and three days off. This meant that they had to be available for work on 243 days per year. Both part-time and full-time crew members were required to bid for flights on their available days, depending on their preference for longer flights which might result in additional elements of pay, or shorter flights which might be less well-paid but were better for their personal circumstances. Bids for flights were generally allocated on the basis of seniority. This arrangement meant that actual hours could fluctuate considerably. However, annual basic salary did not vary with the number of hours on duty. Although Ms Pinaud had to be available for 53.5% of the full-time hours, she was paid only 50% of the basic salary of her full-time comparator. Shortly after taking voluntary redundancy, she brought a claim for less favourable treatment.

BA produced statistics to demonstrate that cabin crew pursers’ actual hours of work varied greatly, and that Ms Pinaud had in fact worked 50% of the hours of her full-time comparator. BA argued that since the adverse effect was therefore trivial, a broad approach to comparability was appropriate. In any event, this slight difference was a proportionate means of achieving the legitimate aim of providing a workable 50% shift pattern.

The Employment Tribunal held that Ms Pinaud had been treated less favourably because she was a part-time worker and that BA’s statistics were irrelevant to the issue of liability. It also held that BA had a legitimate objective in providing a part-time shift pattern which was workable, flexible and popular with cabin crew. However, the less favourable treatment was not an appropriate or necessary means to achieve this objective. The Tribunal suggested that the discrimination could have been avoided by paying part-time cabin crew pursers 53.5% of a full-time salary.

The Employment Appeal Tribunal (EAT), and now the Court of Appeal, upheld the Tribunal’s finding of less favourable treatment, although the question of justification was remitted to a different Tribunal. The Tribunal will now need to consider BA’s statistical evidence and its argument that the part-time shift pattern was in practice advantageous to Ms Pinaud. However, the EAT noted in its judgment that if part-time workers had to be available for a greater number of days, it was difficult to see how this could not have a significant adverse effect on them.

It will be interesting to see how the Tribunal deals with the justification issue and BA’s argument that an exact 50% working pattern cannot be mathematically achieved because of the variations in shift patterns between full and part-time workers. This case is particularly important for BA because 628 similar claims have been stayed pending its outcome.

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