Part-Time Worker Who Was Paid 50% of Full Pay Was Treated Less Favourably
The Court of Appeal has confirmed that a British Airways cabin crew member who was paid 50% of a full-time salary, despite being required to be available for work on more than 50% of the days a full-time employee was required to be available to work...
...Was treated less favourably.
Background
In British Airways v Pinaud, a part-time member of cabin crew (Ms Pinaud) brought a claim that she was being treated less favourably as a part-time worker because she was required to be available for work for 130 days a year, which amounted to 53.5% of the 243 days a full-time employee is required to be available to work, but was only paid 50% of the full-time salary.
In the first instance, the Employment Tribunal (ET) found that Ms Pinaud had been subjected to less favourable treatment on the basis of the requirement to be available for work, despite BA being able to show that she actually worked less than 50% of the days actually worked by her full time comparator. The ET also found that BA could not justify this less favourable treatment and suggested that this could have been avoided had BA paid part-time cabin crew (working on the same contract as Ms Pinaud) 53.5% of the full-time salary.
The Employment Appeal Tribunal (EAT) agreed with the ET and found that Ms Pinaud had been treated less favourably. However, it remitted the question of justification to be heard again by a new Tribunal. This was because the ET had failed to assess the practical impact of the less favourable treatment upon Ms Pinaud, including the number of days she actually worked. The EAT also noted that the 3.5% pay increase advocated by the ET had not been suggested by either Ms Pinaud or BA in their arguments. It had not therefore been considered whether this was proportionate to the impact of the less favourable treatment of Ms Pinaud.
The Court of Appeal (CA) Decision
BA appealed the EAT's decision that Ms Pinaud had been subjected to less favourable treatment. The CA dismissed the appeal, upholding both the ET and EAT decisions.
The CA also commented that that there may be practical advantages to a part-time contract which could justify the less favourable treatment. This was, however, not a matter to be considered by the CA but is to be considered further by the ET.
The CA also noted that if Ms Pinaud's claim was still successful the question of damages would need to be considered by the ET. In considering this, BA's evidence that part-time workers may actually work fewer days pro-rata compared to full-time staff should be properly considered.
Although this case relates specifically to Ms Pinaud, the decision, and level of damages, are of particular significance for BA as there are 628 other members of cabin crew whose tribunal claims are currently on hold pending the decision in this case.
Best Practice
While the ultimate outcome of this case is yet to be reached, all of the decisions so far have been consistent in finding that paying part-time workers proportionately less than their full-time equivalents amounts to less favourable treatment. Employers should therefore always try to apply the pro-rata principle, ensuring, for example, part-time staff who work for 50% of the time a full-time worker is required to, are paid to reflect this.
If there are reasons not to apply the pro-rata principle employers should be clear on their reasons for setting rates of pay at particular levels, consider the impact upon staff, consider whether there are ways of minimising any negative impact and collate evidence to demonstrate their positions.