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A large proportion of people in the UK now work on a part-time basis. According to the Office for National Statistics, there were 8.55 million people working part-time at the end of 2016, an increase of 84,000 on the year before. With many people working more flexibly, employers face challenges with regard to how to manage these different working arrangements in practice.

 

To protect part-time workers, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 allow part-time workers to challenge less favourable treatment that cannot be objectively justified, if the treatment is on the ground of their part-time status. Under the regulations, benefits given to full-time workers must be given to part-time employees in a pro-rated manner. For example, an employee working 3 days a week would receive 3/5ths of the holidays that an employee working 5 days a week would receive.

However, this can be a complex area, as a decision by the Employment Appeals Tribunal from early August shows. In British Airways v Pinaud, BA appealed a decision by the Employment Tribunal that they had treated the Claimant less favourably than a full-time worker on the ground of her part-time status. At first glance, the facts seemed fairly straightforward. BA’s full-time crew worked a pattern of 6 days on and 3 days off. Over the year this resulted in them being available for work for 243 days and being off 122 days. The Claimant was part of a crew who worked a pattern of 14 days on and 14 days off. Within the 14 days on, she had to be available for work for 10 days, resulting in her being available for work for 130 days in a year. This was 8.5 days (or 3.5%) more than 50% of the full-time comparator’s available days. However, the Claimant was paid only 50% of the salary paid to members of staff on the standard full-time rota.

The ET viewed the situation as being fairly simple: the fact that the Claimant was required to be available for more days than her full-time comparator to receive the same amount of pay was, on the face of it, discriminatory. BA argued that even if there was less favourable treatment, this was justified, because there was no mathematically exact way to achieve a workable 50% working pattern, and that the difference was trivial. They offered up statistical evidence that there was no real disadvantage to part-time employees, because there was a difference between the hours that staff were required to be ‘available’ to work, and those which they were actually flying. According to BA, in terms of actual flying hours, statistical evidence showed that in recent years, the Claimant had actually worked fewer hours than her full-time equivalent had for the same pay.

While the aim of having a workable part-time contract was considered a legitimate aim, the ET did not consider the means necessary to achieve the aim. It did not regard the statistical evidence relevant, as the Claimant had complained about the number of hours she was required to be available rather than those she was actually flying. The ET decided that she should be paid 53.5% of the full-time salary, and that this would correct the inequality. 

The EAT reversed this decision. While they agreed that there had been less favourable treatment of the Claimant, they did not agree that the statistical evidence was irrelevant. Judge Richardson noted that once the ET had accepted that BA were pursuing a legitimate aim, they were bound to make a practical assessment of the impact of the unfavourable treatment when deciding whether it was proportionate and necessary for achieving the aim. The case was sent to a different Tribunal to determine this point. It is important to note however that the Judge was sceptical about BA’s arguments. Although he felt that the statistical evidence should have been reviewed, he found it difficult to see why “if the part-time worker had to be available for a greater number of days, this should not work its way through into a significant impact for the employee, both in terms of day of availability and hours worked”. This suggests that the EAT was unconvinced about BA’s ability to justify the unfavourable treatment on rehearing.

This case is a good example of the complexities that can surround the protection of part-time workers. Other difficult areas include benefits paid for on an annual basis such as health insurance, which cannot be easily pro-rated. Employers may take the view that they will pay the equivalent proportion of the benefit; for example, for an employee working 3 days out of 5 the employer may decide to contribute 3/5ths of the cost of the benefit annually. Paid statutory or bank holidays can also cause problems where these are granted on top of the employee’s normal holiday entitlement, rather than included within it, as the majority of these holidays fall on a Monday, which can result in part-time employees who work the same number of days per week receiving different amounts of days off per year simply because of the days they work. This can be solved by simply including the number of statutory and bank holidays in the total number of holidays for the year and prorating the entire amount for part-time individuals, rather than leaving employees to take only the days that fall on the days they happen to be working. However, it is important to remember that even if there is a disadvantage to part-time employees, if there is an objective justification for this then differentiation between full-time and part-time employees may not always be unlawful. Often, it is necessary to look beyond the basics to assess whether a particular arrangement or clause would treat part-time workers unfavourably and what, if any, the reasons behind such treatment are, as there may be other means of achieving the same goals without the differential treatment. If you have any queries about the approach to part-time working, please get in touch with a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

Chambers UK 2018

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