The Claimant, as a part-time worker, was treated less favourably as regards the terms of her contract because she was required to be available for proportionately more days. The full-time worker was required to be available for 243 days per year, 50% of which was 121.5 days, but the part-time worker was required to be available for 130 days. This was proportionately 3.5% more days of availability for the same pay.  The Claimant also claimed that she was regularly required to work more than 50% of the Duty Hours of a full-time employee, despite receiving 50% of a full-time employee's salary. The Claimant claimed that this constituted less favourable treatment under Regulation 5 of the PTWR. The ET agreed and the Respondent appealed.

The EAT first dismissed the appeal against less favourable treatment. The Employment Tribunal correctly approached the question whether the Claimant was treated by the Respondent less favourably than it treated a full-time comparator as regards a term of the contract concerned with pattern of availability for work. However, on the justification issue, the ET had been wrong to say that statistical evidence produced by the parties was irrelevant to the question.