Find out more about the recent case of British Airways plc v. Pinaud [2018].

Background Law
The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations") empower part-time workers to challenge less favourable treatment arising from their part-time status.

A part-time worker has the right not to be treated less favourably by an employer than a comparable full-time worker. Less favourable treatment may involve:

  • contractual terms; or

  • being subjected to a detriment by an act or a deliberate failure to act by the employer.  

This right only applies where the employer cannot justify the less favourable treatment on objective grounds.  If the less favourable treatment aims to achieve a legitimate objective, is necessary to achieve that objective, and is an appropriate way of achieving the objective, then the employer will be able to justify the less favourable treatment.  

The remedy in successful cases can include compensation that the Tribunal considers fair in all the circumstances, having regard to “(a) the infringement to which the complaint relates, and (b) any loss which is attributable to the infringement". Loss includes "any expenses reasonably incurred by the complainant in consequence of the infringement" and "loss of any benefit" that the worker might reasonably be expected to have had if the infringement had not happened (Regulation 8 of the Regulations).

British Airways plc v. Pinaud
British Airways plc v. Pinaud [2018] involved a part-time cabin crew purser (chief flight attendant) who needed to be available for work for 130 days per year. In contrast, full-time pursers needed to be available for work on 243 days per year. If you were Ms Pinaud, and you needed to be available for 53.5% of the days that a full-time worker needed to be available for work, you might expect 53.5% of a full-time worker's salary. Surprisingly perhaps, Ms Pinaud was paid only 50% of the salary of a full time-purser. She brought an Employment Tribunal Claim for less favourable treatment under the Regulations.

The Employment Tribunal upheld Ms Pinaud's Claim: in being required to work more than 50% of the hours of a full-time purser, but only receiving 50% of their salary, the Tribunal agreed that Ms Pinaud had been subjected to less favourable treatment.  In the Tribunal's view, while the shift pattern worked by Ms Pinaud had a legitimate objective, it was not a necessary or appropriate way of achieving that objective.

At the Tribunal, British Airways had used statistics showing the actual time worked by Ms Pinaud and the full-time worker she was comparing herself to, in an attempt to persuade the Tribunal that Ms Pinaud was not required to work more hours than the comparator, so the impact of the alleged less favourable treatment was minimal. However, the Tribunal deemed these statistics to be irrelevant to whether British Airways were liable for the less favourable treatment.

British Airways Appealed the decision, and the case went to the Employment Appeal Tribunal ("EAT"). The EAT agreed that Ms Pinaud was apparently subject to less favourable treatment, but decided that the Employment Tribunal was mistaken not to have assessed the practical impact of the treatment (which British Airways had tried to point out) in deciding whether that treatment was objectively justified.

The EAT sent the question of whether the treatment was objectively justified back to a freshly constituted Employment Tribunal.

British Airways Appealed the EAT's decision, arguing that the EAT erred by upholding the Employment Tribunal's decision that Ms Pinaud had, on the face of it, been subject to less favourable treatment.

The Court of Appeal dismissed the Appeal and agreed that Ms Pinaud's case of less favourable treatment had been made out. Lord Justice Bean, who gave the leading Judgment, noted that there might well be advantages to the part-time worker from the way her contract was constituted "which may or may not be found sufficient to establish the justification defence", but that did not change the fact Ms Pinaud had seemingly less favourable contract terms than those of the full-time purser she had compared herself to.

The case will now return to the Employment Tribunal to determine whether British Airways can establish objective grounds to justify the less favourable treatment.

How important is this case to British Airways?
Very. If they were Ordered to simply pay Ms Pinaud 3.5% of salary and pension contributions for the 10 year period she worked under her part-time contract, the compensation would amount to more than £50,000. Nor would it end there, as 628 similar Employment Tribunal Claims against British Airways have been stayed pending the outcome of this case.

Do you need advice relating to part-time work? Contact our Employment Law team today.

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