British Airways v Pinaud (Part Time Workers)

For a contractual term governing a part-time worker’s availability for work, less favourable treatment may be established by comparing the required available days and the respective basic pay. The statutory pro rata principle, defined by weekly hours, does not apply where the term does not determine weekly hours.

Objective justification requires a practical assessment of the treatment’s impact. Relevant statistical evidence about the hours ultimately worked cannot be disregarded merely because the contractual disadvantage concerns days of availability. That evidence may bear on proportionality and on whether a proposed pay adjustment is an appropriate alternative.

The claimant worked as a part-time Purser for British Airways on a 14/14 pattern. She received 50% of the basic salary of a full-time comparator but was contractually required to be available on 130 days each year, rather than 50% of the comparator’s 243 available days.

The Reading Employment Tribunal upheld her complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It found less favourable treatment in the contractual availability requirement and held that it was not objectively justified. It did not decide her alternative case concerning actual duty hours.

British Airways appealed. The central issues were whether the Tribunal had made the correct comparison for less favourable treatment and whether it could treat the parties’ statistical evidence as irrelevant to objective justification.

1. Appeal allowed in part. The Employment Tribunal’s finding of less favourable treatment under regulation 5(1)(a) was upheld. Its conclusion that the treatment was not objectively justified was set aside. Justification, together with the claimant’s alternative duty-hours case, was remitted to a freshly constituted Tribunal.

2. The relevant contractual term required the claimant to be available on specified days. It did not prescribe the weekly hours she would actually work, since work was allocated after availability through bidding and other operational arrangements. The statutory pro rata principle in regulations 1(2) and 1(3) was therefore inapplicable to that term.

3. Nevertheless, regulation 5(1)(a) required a meaningful comparison of the contractual terms. The Tribunal correctly compared the claimant’s required available days with those of the full-time comparator. It was also entitled to take account of the respective basic pay. The comparison was not confined to actual duty hours, and the Tribunal had not wrongly applied the statutory pro rata definition.

4. On justification, the Tribunal correctly identified a legitimate aim and the need to assess whether the means used were appropriate and necessary. The approach reflected Ministry of Justice v O’Brien [2013] ICR 499. However, proportionality required a practical assessment of the impact of requiring additional available days. The employer’s statistical evidence was capable of bearing on that impact, even if the judge was sceptical of its ultimate force. The Tribunal erred by treating the evidence as irrelevant.

5. The Tribunal could not properly propose increased salary as a non-discriminatory alternative without considering whether the availability disparity affected the amount of work actually undertaken. Since the justification issue was remitted, fairness also required consideration of the claimant’s alternative case. Applying the general guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, remission to a new Tribunal was appropriate because of the outstanding statistical issues and unaddressed claim.

• Employment Appeal Tribunal: Allowed British Airways’ appeal in part. The finding of less favourable treatment was upheld, but the justification issue and the alternative duty-hours case were remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal, Reading: Upheld the claimant’s complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The lower judgment citation is not stated in the judgment.