Part-Time Workers Discrimination - How Difficult Is it to Justify?
In a recent appeal brought by British Airways, the Employment Appeal Tribunal (EAT) highlighted how difficult it can be to justify less-favourable treatment on the grounds of part-time status, whilst accepting that...
...employment tribunals must look at the employer's arguments in detail.
Background
In British Airways v Pinaud, a part-time worker claimed that she was required to be available to work on more than 50% of the days of a full time employee, despite receiving only 50% of the pay of that of a full time employee. The Employment Tribunal (ET) found that this constituted less-favourable treatment on the grounds of the worker's part-time status. It also found that the less-favourable treatment could not be justified.
On appeal the EAT agreed that less-favourable treatment had occurred. However, it remitted the question of justification to be heard again by a new Tribunal.
In the EAT's view, the original tribunal had failed to take into account the practical impact of the less-favourable treatment when deciding the issue of justification. For reasons relating to the complicated rota system operated by the airline, BA's position was that being available for more than 50% of the days of a full time worker did not result in a disparity in hourly pay. BA had produced detailed statistics to support its case which the tribunal had ignored.
The EAT held that the ET should have made a practical assessment of the impact of the unfavourable treatment the part-time worker was subjected to.
What Can We Learn from This?
- Always try and apply the pro-rata principle - in most cases if a worker is required to be available for work for 50% of the time a full-timer is required, their salary should reflect this.
- If it is not possible to apply the pro-rata system to your work rota, be very clear why and set out the measures the company is taking to mitigate the issue.
- Justifying less-favourable treatment will be difficult, especially where the employer has not examined alternatives and gathered relevant evidence at the time when the less-favourable treatment started.