British Airways Plc v Pinaud [2018] EWCA Civ 2427

Appeal against a ruling that the Respondent had treated a part-time worker less favourably than the full-time comparator. Appeal dismissed.

The Claimant worked 14 days on and 14 days off which meant that she was expected to be available for work for 130 days per year. Her full-time comparator worked 6 days on and 3 days off which meant that they were expected to be available for work for 243 days per year. The Claimant was paid 50% of the full-time salary but was expected to be available for work for 53.5% of the full-time hours. An ET found that this was prima facie less favourable treatment within Regulation 5(1)-5(2). The ET found that there was a legitimate objective in the part-time shift pattern but that the less favourable treatment was not a necessary or appropriate means of achieving the objective; and that a non-discriminatory means of achieving the same legitimate aim would be to simply pay an annual salary of 53.5% of the full-time 6-3 salary. The ET went on to note that they had been presented with a range of statistics showing the actual hours worked by the Claimant and the comparator. They found that the statistics were not only unnecessary but irrelevant, emphasising that the ET's finding was based on the requirement to be available for work on a specific number of days and not on the actual work which was carried out on those days. The EAT held that the ET's finding of less favourable treatment would be upheld but the question of justification would be remitted. The Respondent appealed the less favourable treatment decision.

The Court of Appeal dismissed the appeal. The terms of the Claimant's contract required her to be available for work 130 days per year. The terms of the comparator's contract required her to be available 243 days per year. The Claimant was paid 50% of the comparator's salary. Half of 243 is 121.5. There may be advantages to the part-time worker from the way the 14-14 contract was constituted, and these may or may not be found sufficient to establish the justification defence when the case is remitted to the ET. But that does not affect the question of whether the terms of the Claimant's contract, insofar as they require her to be available for 130 days rather than 121.5 days, were prima facie less favourable than those of her full-time comparator. The ET were right to hold that they were.

Published: 02/11/2018 10:24

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