Fly me to the… Court of Appeal
Thursday 29th November 2018
In British Airways plc v Pinaud, the Court of Appeal has considered less favourable treatment of a part time worker under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Part time workers have the right not to be treated less favourably than a comparable full time worker in the terms of their contract. The same right applies where they are subjected to a detriment by any act, or deliberate failure to act, by their employer. In most cases, ‘less favourable treatment’ will be assessed by reference to the equivalent benefit enjoyed by a comparable full time employee, with the pro rata principle applied.
The employer can defend less favourable treatment if it can show objectively it was a necessary and appropriate means of achieving a legitimate aim.
Ms Pinaud was employed by British Airways plc (‘BA’) as a cabin crew purser. When she returned from maternity leave in 2005 she agreed a flexible working arrangement. Within this she would receive 50% of a full time salary and would be expected to work 53.5% of the days of a full time colleague. On taking voluntary redundancy in 2015, she brought a claim alleging less favourable treatment.
Decision and comment
The Court of Appeal found that on the face of it Ms Pinaud was treated less favourably because of the imbalance in her salary compared with her required availability for work. The Court did note that the additional advantages for Ms Pinaud may justify the less favourable treatment, but that this was a matter for the tribunal to consider, with statistical evidence as required.
For BA this has wide ranging implications as a test case for 628 similar claims that are stayed pending the present outcome. For employers more generally it is a reminder to assess any working arrangements which may disadvantage part-time workers, consider whether these are justifiable, or seek alternative approaches.