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This article was published on October 12th, 2017
British Airways v Pinaud
People who work part-time are protected from being treated less favourably than their comparable full-time colleagues. The question in Ms Pinaud’s case was whether working more than 50% of full-time hours but not being paid more than 50% of a full-time salary was less favourable treatment.
Ms Pinaud’s part-time working pattern, described as a 50% contract, was 14 days on and 14 days off. Over the course of a year, she was required to be available for 130 days. Compare that with the full-time position, which required workers to be available for 243 days in a year.
Ms Pinaud’s claim was based on the fact that half of 243 is 121.5, and not 130. She was therefore required to be available on proportionately more days than full-time workers, and she was being paid 50% salary for about 53% of the work.
The employment tribunal held that this was less favourable treatment. Although the employer had a legitimate objective – essentially, to provide a workable shift pattern – the less favourable treatment was not a necessary or appropriate means of achieving that. The treatment wasn’t justified. Had the employer renamed the part-time contract a ‘53% contract’ and paid Ms Pinaud 53% of a full-time worker’s salary, the less favourable treatment would have been removed. That would have been an alternative, non-discriminatory way of achieving the employer’s legitimate aim.
The EAT agreed with some of that. It upheld the decision that Ms Pinaud had been treated less favourably on the grounds that she was a part-time worker. But the tribunal should not have discounted the statistical evidence about the actual hours worked by Ms Pinaud and by her full-time comparators when it came to the question of justification.
The EAT added that a simple increase in salary for a part-time worker like Ms Pinaud would not necessarily be an alternative way of achieving an employer’s legitimate aim; it might be out of proportion to the impact of the disparate treatment on the part-time worker. So simply upping the salary of someone in Ms Pinaud’s position will not automatically fix the problem. All of the facts need to be considered.
A fresh tribunal will now assess whether or not the less favourable treatment was justified.
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