If a part-time worker works more than 50% of full-time hours, but is paid only 50% of full-time salary, it is less favourable treatment.
British Airways v Pinaud
In the above case, the Employment Appeals Tribunal (EAT) concluded that this is less favourable treatment, which is contrary to the Part-Time Workers Regulations 2000. In addition, the EAT held that if statistical evidence is available, it cannot be disregarded. The case was sent back to the Employment Tribunal on this question.
Shift patterns and holiday entitlement
At British Airways, full-time crew worked a 6/3 pattern, six days on, three days off. This gives 243 available work days and 122 days off each year.
Part-timers worked a 14/14 pattern with ten available work days required each fortnight. This creates 130 available work days and 235 days off per year.
50% of a full-timer’s availability (243 days) is 121.5 days. A part-timer had to be available for 130 days, which is 3.5% more.
Less favourable treatment for part-timers
British Airways argued that the bidding system for work and bid choices created the anomaly, but the EAT upheld that this was plainly less favourable treatment which could not be justified.
Assessing justification, the ET suggested increasing part-time pay to 53.5% would "cure" the discrimination. The EAT held that this "simple expedient" oversimplified the matter. A freshly constituted tribunal would need to consider the impact by reviewing statistical evidence which had been disregarded by the ET in error.
Part time discrimination claims
Part-time discrimination claims are still relatively rare compared to the more common protected grounds, such as sex, age, race and disability. Kate Fretten, Employment Partner at Frettens, says “This was a pretty clear-cut case involving part-time workers being treated less favourably than their full-time colleagues. Whilst this type of claim is relatively rare, the case is a reminder to employers that they need to be careful in checking their part-time staff are treated on an equal basis to full-time staff. Holiday entitlement is the most common area for discrepancies.”
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.