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Employment Law Case Update: British Airways v Pinaud

Nov 16, 2017

Ms Pinaud joined British Airways on 24 June 1985 and was promoted to Purser in 1993 where she worked on a full-time basis. In 2005 she returned to work after maternity leave working on a part-time basis. She continued working part-time until she took voluntary redundancy on 30 April 2015.

Some long serving crew worked on a contractual working pattern, the full-time pattern was called the 6/3 pattern - six days off and three days on. This meant that over the year the full-time crew member was available for work 243 days and off for 122 days. In contrast for part time crew members the pattern was 14 days on and 14 days off, and within the 14 days on had to be available for 10 days. This meant that the part-time crew member would have had to be available for 130 days throughout the year. There was a system of bidding for work on available days; crew members would have to fulfil ground duties or be on standby during available days. There was no clear link between days of availability and the hours worked by employees.

Ms Pinaud worked part time and she believed that when she accepted voluntary redundancy she was not paid a pro rata amount by comparison with her full time counterparts.

At the Employment Tribunal hearing, her case was put in two ways:

  1. that as a part-time worker, she was required to perform 3.5% more work days proportionately than a full-time worker from 2005-2015; and
  2. that she was regularly required to work more than 50% of the duty hours of a full-time employee, despite receiving 50% of a full-time employee’s salary.

Ms Pinaud’s case was that the above constituted less favourable treatment under the Part Time Worker Regulations on the basis that she had to be available for 53.5% of full-time hours but was paid only 50% of full-time salary.

British Airways contested the claim, referring to statistics which illustrated that the claimant had worked 50% of the hours of her comparator. They also argued that any difference would be trivial and any less favourable treatment was justified. Both the Tribunal and subsequently the EAT agreed that there had been less favourable treatment.  The issue in the case however was whether the treatment was in fact justified in that British Airways were pursuing a legitimate aim by proportionate means.

The EAT held that the Tribunal had been wrong to find that the less favourable treatment was justified as they had failed to consider the impact of the less favourable treatment on the worker. Although BA hoped to provide a shift pattern that was workable for staff and enabled them to run an effective business, the Tribunal thought that the best way to achieve this aim would be to pay the part-time workers 3.5 per cent more salary. However, the EAT held that the Tribunal  would recognise that once Mrs Pinaud had gone through the process of bidding for available work, she was not required to work any more hours than her full-time comparator and the impact of the unfavourable treatment would be minimal. The EAT referred the case to a new tribunal urging them to consider the statistical evidence put forward by British Airways and the impact on the part-time worker.

This case is of interest in terms of the legitimate aim which BA were pursuing, and the use of statistical evidence need to justify their decisions. Employers should be aware of the justification behind their policies, working practices and pay arrangements.

This article is from our weekly Employment Law Newsletter published on 16/11/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.