Thu 29 Nov 2018

Pay parity and the Part time Workers Regulations

Over 600 BA cabin crew are claiming that they have been less favourably treated, being on call for 53.5% of full time but only being paid 50% of full time pay.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 allow part time workers to challenge less favourable treatment which is on the grounds of their part time status if the treatment cannot be justified.  Whether or not a part time worker has been treated less favourably is determined by applying the pro-rata principle, so when it comes to pay if a worker is employed for half the time then he or she should receive half the pay of a full time comparator.  And unlike the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, it is not possible to offset a benefit in one area against a less favourable term in another - rather it is a term by term comparison. 

In British Airways plc v Pinaud the Court of Appeal has confirmed that paying a part time worker 50% of the pay of a full time comparator while requiring her to be available for 53.5% of the time was prima facie less favourable treatment.  Both the EAT and the Tribunal at first instance had come to the same conclusion.  The Tribunal, having found the less favourable treatment considered whether it was objectively justified.  While the part time shift pattern (resulting in the 53.5% shift) was a legitimate objective, the Tribunal found that it was not a necessary or appropriate means of achieving that objective.  It was also suggested that the discrimination could have been avoided by paying the part time workers 53.5% of a full time salary.  As the claim went back over 10 years that amounted to £50,000 for Ms Pinaud's claim alone meaning the total liability for BA for 600 plus claims was very significant. 

On appeal to the EAT, while upholding the less favourable treatment point, the EAT found that the Tribunal had failed to assess the practical impact of the treatment when deciding if it was objectively justified as BA had statistics that showed that Ms Pinaud actually worked fewer days pro-rata than her comparator.  The justification point was remitted to a different Tribunal, although the EAT expressed doubts as to whether it could succeed, while the less favourable treatment point was appealed to the Court of Appeal.  

While finding the inequality in pay was less favourable treatment, the Court of Appeal also commented on the potential remedy if the justification point was unsuccessful when remitted to the Tribunal.  If BA's statistics that Ms Pinaud in fact worked fewer days pro-rata than her full time comparator were to be accepted, the Court said it would be "very surprising" for the Tribunal to then reach a conclusion that she had suffered a loss which amounted to 3.5% of her remuneration over the 10 year period.  In other words, Ms Pinaud and the other part time workers making similar claims could have something of a pyrrhic victory.

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