Part time worker discrimination
It is not that often that we get a discrimination case under the Part Time Workers Regulations 2000, perhaps because most employers are familiar with the “pro rata” principle whereby part time workers’ pay and benefits should be proportionate to that of full time workers, based on the number of hours worked. However, the recent case of British Airways v Pinaud, demonstrates how problems can arise where you have part time and full-time staff working complicated shift patterns.
Under the Part Time Workers Regulations 2000 (PTWR), part time workers have the right not be treated less favourably than comparable full-time workers in the terms of their contract. To decide whether a part time worker has been treated less favourably, the pro rata principle is normally applied. If less favourable treatment is found, it is a defence for the employer to show that the treatment is objectively justified. Less favourable treatment of a part-time worker can be justified on objective grounds if it can be shown it is necessary and appropriate to achieve a legitimate business objective.
Mrs Pinaud was a part time crew member who worked shifts. The full-time shift pattern was a 6/3 pattern, meaning full time employees worked 6 days on and 3 days off. Mrs Pinaud worked the part time “14/14 pattern” of 14 days on and 14 days off. During the 14 days “on” she was required to be available for work for 10 days. This was described as a 50% contract, and her annual basic salary was 50% of that of a full-time crew member.
On an annual basis, a full-time crew member was required to be available for work 243 days per year, 50% of which was 121.4 days. However, on her shift pattern, Mrs Pinaud was required to be available for 130 days. She had to be available for work more days, proportionately, than a full-time worker.
Mrs Pinaud brought a claim under the PTWR claiming that she had been less favourably treated than a full-time crew member because she said she had to be available for 53.5% of the days on which a full time employee had to be available, but was only paid 50% of a full time employee’s salary.
The Employment Tribunal held that Mrs Pinaud had been treated less favourably on the grounds she was a part time worker. British Airways argued that any less favourable treatment was justified because it had a legitimate aim to provide its workers with a 50% working pattern and that the slight difference was a proportionate means of achieving this aim. The Tribunal agreed that BA had a legitimate aim but held that the less favourable treatment was not objectively justified and that a non-discriminatory way of achieving the same aim would be to pay workers on the part time shift pattern an annual salary which was 53.5% of the full-time salary. The Tribunal also said that BA’ s statistical evidence (which BA said showed that the hours Mrs Pinaud actually worked – as opposed to the hours she had to be available to work- were not that different to a full-time comparator) was irrelevant.
BA appealed to the EAT arguing amongst other things, that the Tribunal was wrong to ignore its statistical evidence when considering whether the discriminatory treatment was justified.
The EAT found nothing wrong with the way the Tribunal concluded that there had been less favourable treatment. However, the EAT said the Tribunal had been wrong in law to regard the statistical evidence as irrelevant to the question of justification.
The EAT said that the Tribunal had to make a practical assessment of the impact of the unfavourable treatment, when deciding whether the treatment was objectively justified. It was part of BA’s case that the impact of the less favourable treatment was minimal, because the statistics showed that the part-time worker was, in practical terms, not actually required to work more hours than her full-time comparator.
The question of justification was remitted to a new Tribunal to decide.
Points to note
This case is a useful reminder of the rights of part timers to be treated equally to full timers.
Action to take
1. Ensure that the pay and benefits given to your part-time workers are no less favourable than those given to someone doing the same job on a full-time basis, although you are entitled to apportion the pay and benefits provided. Part-time workers have the same entitlements to pensions, bonuses, shift allowances, perks, sick pay, etc. on a pro rata basis as full-timers.
2. Where employees are working complicated shift patterns, as in the BA case, look carefully into whether your part time employees are in reality working more hours for less pay than their full-time comparators.
3. Statistics show that more women than men work part time so an employer could also face a claim for sex discrimination by discriminating against part-timers. Ensure that even if you can justify different treatment between part timers and full timers on objective grounds, that those grounds are unrelated to the sex of the employee and there is no disproportionate impact on women.
Don’t forget getting advice from a Solicitor does not have to be complicated or costly!
Contact us on: 01983 897003, 0238 982006 or 01722 653001