Assessing and addressing disadvantage for Part-time Workers6 October 2017
The recent case of British Airways v Pinaud reminds us that part-time workers are entitled to proportionately the same as full-time workers and that statistical evidence will be relevant to the consideration.
At Employment Tribunal level it was found that British Airways had treated Ms Pinaud – a part-time worker – less favourably than full-time workers. The terms of her contract required her to be available for proportionately more days than full time staff and she was regularly required to work proportionately more ‘duty hours’ than her full time ‘equivalents’.
British Aiways’s contractual shift patterns meant that full-time employees had to be available to work for 243 days per year. While 50% of this figure is 121.5 days, the pattern applicable to part-time workers working for 50% of ‘full time’ pay meant they had to be available for 130 days per year. Therefore, proportionately, this required more days’ availability for the same level of pay.
One of British Airway’s arguments was that the hours actually worked fluctuated – because cabin crew had to ‘bid’ for flights of varying lengths on their available days.
BA appealed to the EAT.
The EAT upheld the Employment Tribunal’s original finding of less favourable treatment. However, on the question of whether it was a “proportionate means of achieving a legitimate aim”, the EAT concluded that the Tribunal had been wrong to disregard statistical evidence showing the actual hours worked by the employee and her full-time equivalent.
A newly constituted tribunal will now consider the impact on Ms Pinaud, with reference to this evidence.
This case reminds employers that those working part-time should always be dealt with using the pro-rata principle (i.e. in reference to full-time workers in comparable roles). This applies to both their contractual arrangements and working patterns.
If any less favourable treatment is unavoidable due to a legitimate business interest, employers should clearly record the business aim they have pursued; and, if possible, use statistics to evidence how the relevant measures facilitate this in a proportionate way. A straightforward increase in a part-timer worker’s salary may not necessarily solve the problem. The EAT emphasised the need to evaluate the impact of unfavourable treatment on individual part-time employees when determining what is proportionate.