Half the hours, half the pay
Christian Meredith explores whether paying 50% of full-time pay for 53.5% of full-time work was less favourable treatment of a part-time worker.
In a recent case heard at the Court of Appeal it was determined that a part-time worker who had to be available for 53.5% of the hours of a full-time comparator, but only received 50% of the salary, had received less favourable treatment under the Part-time Workers Regulations 2000 (PTW).
The case concerned Ms Pinaud, a British Airways (BA) cabin crew employee, who worked on a part-time contract. She was on duty for 14 days and off duty for the next 14 days meaning she had to be available to carry out 130 days of work per year. A full-time equivalent had to be available for 243 days per year. This meant Ms Pinaud had to be available for 53.5% of the full-time comparator’s hours. However, the critical issue was that she only received 50% of the full-time comparator’s salary. This resulted in the part-time employee bringing an employment claim for less favourable treatment under PTW.
The Employment Tribunal (ET) upheld her claim stating that although the part-time working pattern had a legitimate objective, the approach taken by BA was not an appropriate means of reaching that objective because in real terms the implication was that Ms Pinaud had to be available to work 8.5 days per year more than a full-time comparator. This was not a minimal amount.
BA appealed to the Employment Appeal Tribunal (EAT) stating the ET had failed to assess the practical impact of the less favourable treatment when deciding if it could be objectively justified as BA calculated that Ms Pinaud had actually worked less days pro rata than the full-time comparator.
The EAT dismissed this appeal with swift efficiency and accepted it was less favourable treatment. A fresh Tribunal will now need to determine whether this can be justified (in which case the approach will still be lawful). BA argue that the legitimate aim of the treatment is to provide a workable arrangement that is 50% of a full-time contract. They state this less favourable treatment is justified because it is impossible to achieve an alternative pattern that has less negative impact as a year can’t be precisely divided in half. This is an important case for BA as over 600 of Ms Pinaud’s colleagues have cases that have been stayed pending the outcome of this case.
This case demonstrates to other employers that hours and pay of part-time workers should be comparative to that of full-time workers unless there is clear evidence justifying any less favourable treatment.