British Airways Plc v Pinaud

Under the Part-Time Workers (Prevention of Less Favourable) Treatment Regulations 2000, contractual availability obligations may establish prima facie less favourable treatment when compared with those of a comparable full-time worker. The pro rata principle does not govern that availability-days route, although it may apply to an alternative claim based on duty hours and pay. Actual hours worked and advantages of the part-time arrangement may be relevant to objective justification and remedy, but do not answer the threshold question. The meaning of “required to work” under the National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015 does not govern the analysis.

Following maternity leave, the respondent worked under a 14-14 part-time contract. She was paid 50% of the full-time salary but was contractually required to be available for work on 130 days each year, compared with 243 days for a full-time comparator.

The Employment Tribunal found prima facie less favourable treatment under the Part-Time Workers (Prevention of Less Favourable) Treatment Regulations 2000, rejected justification and listed the matter for remedy. The Employment Appeal Tribunal upheld the finding of less favourable treatment but remitted justification to the Tribunal: [2017] UKEAT 0291_16_0108. The employer appealed on whether the contractual availability difference established prima facie less favourable treatment.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Bean gave the judgment, with Lord Justice Flaux and Lord Justice Peter Jackson agreeing.

1. Prima facie treatment. Regulation 5(1)(a) of the Part-Time Workers (Prevention of Less Favourable) Treatment Regulations 2000 permits comparison of contractual terms. The respondent’s contractual obligation to be available for 130 days had to be compared with the comparator’s obligation to be available for 243 days. As she received 50% of the comparator’s salary, but was required to be available for 53.5% of the comparator’s days, the Tribunal was entitled to find prima facie less favourable treatment.
2. Separate justification inquiry. The existence of advantages in the 14-14 arrangement did not affect the threshold question. Actual days or hours worked were irrelevant to establishing prima facie treatment, but could be relevant to objective justification. The justification issue, including the alternative duty-hours case, therefore remained remitted to the Employment Tribunal.
3. Pro rata principle and authority. The first availability-days route did not engage the pro rata provisions in regulations 5(3), 1(2) and 1(3). The decision in Royal Mencap Society v Tomlinson-Blake, [2018] IRLR 932, concerning “required to work” under the National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015, was not applicable to this materially different statutory scheme.
4. Remedy. The court noted that compensation under regulation 8 would be at large and would require a just and equitable assessment of loss attributable to the infringement. Obiter, if actual work was fewer days pro rata, an award of 3.5% of total remuneration would not automatically follow. The EAT’s remittal on justification and remedy remained undisturbed.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the finding that the contractual availability requirement established prima facie less favourable treatment.
• Employment Appeal Tribunal: allowed the employer’s appeal on justification, upheld the finding of less favourable treatment and remitted justification and the alternative case to a freshly constituted Employment Tribunal: [2017] UKEAT 0291_16_0108.
• Employment Tribunal: found less favourable treatment, rejected the justification defence and directed that remedy be determined.