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This article was published on January 8th, 2019
Is it unfair to pay an employee 50 % of full-time pay for being on duty for 53.5% of the time? Yes, the Court of Appeal said in British Airways v Pinaud, in a case which will affect around 600 similar claims pending against BA.
The employee worked part-time as cabin crew for BA. She had to be ‘available for work’ on 130 days per year, compared with 243 for a full-time employee. Of those days where cabin crew were ‘available to work’, the majority would be flying. The rest would be training days or ‘on call’ days (where employees might be called to fly at short notice). The employee brought a claim for discrimination based on her part-time status, because she was paid only 50% of full-time salary even though she was required to be available for work for 53.5% of full-time hours. The employer showed statistics that the employee actively worked fewer hours pro rata than her full-time colleague, despite being on call for proportionately longer. Was that relevant?
Not to the question of less favourable treatment, said the Court of Appeal. The requirement to be available for more than half of full-time hours for only half of the pay was less favourable treatment. However, the Court said that actively working fewer hours might be relevant to justification, because it may limit the impact of the less favourable treatment. The Court of Appeal sent the case back to the employment tribunal to decide whether the treatment was justified.
If BA cannot justify its part-time pay structures, the cost for the company could be huge. Over 600 employees have brought similar claims. Employers should ensure that pay terms for part-time workers are consistent with their full-time colleagues or have a watertight business reason for any differences.