The law on employing part-time employees says that employers must not treat a part-time employee less favourably than a full-time employee just because of their part-time status. Where less favourable treatment does occur, employers must be able to ‘objectively justify’ that treatment. A recent case involving British Airways part-time staff has shown how easy it is for an employer to fail that test.
Employee Moved From Full-Time To Part-Time
In Pinaud v British Airways, the claimant joined the respondent in 1998 and undertook the role of Purser. Initially she worked on a full-time basis but on her return from maternity leave, she dropped to part-time hours.
Full-time employees worked to what the airline called a ‘6/3’ pattern – 6 days on and 3 days off. The claimant worked on a ‘14/14’ pattern which the airline considered to be exactly half of the required working time of a full-time employee. On the ‘14/14’ shift which followed a 14 days on and 14 days off pattern, the claimant had to be available for 10 of the 14 ‘on’ days.
The claimant was paid 50% of a full-time employee. She made a claim to Employment Tribunal under the 2002 Regulations, asserting that she was required to be available for proportionately more days than a full-time employee despite only being paid half the salary.
The Employment Tribunal found that she had been treated less favourably than a full-time employee and British Airways appealed.
Employment Appeal Tribunal Decision
The Employment Appeal Tribunal agreed that the claimant’s required available days and pay had constituted less favourable treatment when compared to a full-time employee. Quite simply put, the claimant was working for more than half of the hours of a full-time employee but was only receiving half the pay. She had to be available for 130 hours per year; a full-time employee’s corresponding contractual requirement was 243 days. 50% of 243 days is 121.5 meaning that the claimant was working for 8.5 days more than half the full-time amount, equalling 53.5%.
Correct application of the pro-rata principle – where a part-time employee receives an amount reduced proportionately by reference to the amount received by a full-time employee – would have seen the claimant working exactly half full-time hours for half the pay.
As with all instances of less favourable treatment of a part-time employee, British Airways had the opportunity to objectively justify their treatment of the claimant which would mean the practice was not unlawful. In order to do this, they need to have a legitimate aim, and show that their practices are a proportionate means of achieving that aim. Although their aim – to provide a workable 50% contract – was considered legitimate, the means were not proportionate i.e. the payment method was not the least discriminatory way of achieving a workable 50% contract.
To ensure fair treatment, employers should consider the pro-rata principle for other contractual arrangements in addition to pay including bonuses and other allowances. Where different treatment is unavoidable due to legitimate interests, employers should consider whether the least possible discriminatory method of achieving the aim is being implemented.
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