Pay for Part-Time Workers
In British Airways v Pinaud, the Court of Appeal has held that paying a part-time worker 50% of full pay for being on duty for 53.5% of full-time hours amounted to less favourable treatment.
The Claimant was employed under a part-time contract which stipulated that she would work 14 days on and 14 days off and be available to work 130 days per year. By comparison, a full-time worker would be required to be on duty for six days and off for three, meaning that they would be available for 243 days per year. The Claimant was therefore required to be available for 53.5% of the days of a full-time worker but was receiving only 50% of full-time pay. British Airways argued that the Claimant had actually worked fewer days than her comparator.
The Tribunal found that the requirement of the part-time worker to be available for work for 130 days a year rather than 121.5 days amounted to less favourable treatment. It held that this could not be justified as it would have been viable for British Airways to increase the Claimant’s pay to 53.5% of that of a full-time worker.
British Airways’ appeal on justification was allowed, with the EAT finding that statistical analysis of the impact of being available needed to be considered before it could be determined whether increasing the rate of pay would have been disproportionate. However, as it was again held that there had been less favourable treatment, British Airways appealed to the Court of Appeal.
This appeal was rejected by the Court of Appeal, who held that the requirement that a part-time worker be available for 53.5% of the days of a full-time worker, in return for 50% of the pay, was prima facie less favourable treatment. The case was remitted to the Tribunal to consider British Airways’ justification defence, and if that is rejected, the remedy to be awarded. It should be noted that Bean LJ said that were the Tribunal to award compensation of 3.5% salary for the period of loss claimed, if it was accepted that the Claimant worked fewer days than her comparator, this “would be a very surprising conclusion”. The decision reached by the Tribunal will be used to determine 628 similar claims against British Airways.
This decision should be noted by employers who engage staff on a similar part-time basis, it highlights the importance of ensuring that the hours they are required to work and the level of pay that they receive are properly aligned.