The importance of assessing how shift patterns work in practice and the reality of how these affect part-time workers’ hours and salary has been highlighted by this case.
In British Airways v Pinaud, the company operated two shift patterns for crew members. A full-time “6/3 pattern” provided for six days on and three days off, meaning a full-time crew member had to be available for work for 243 days over the year. A part-time “14/14 pattern” was expressly described as a 50% pattern where the crew members received a basic salary that was 50% of the full-time salary. The design of 14 days on and 14 days off required a part-time crew member to be available for work for 130 days over the year.
The claimant was employed as a full-time crew member since 1985. Following her maternity leave in 2005, she began working the part-time shift pattern. She later brought a claim of less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 as the terms of her contract required her to be available for more days than a full-time comparator.
The employment tribunal (ET) found that the contractual terms required the claimant to be available for 53.5% of the days a full-time comparator had to be available, whilst only receiving 50% of the comparator’s salary. They concluded this was less favourable treatment on the grounds of being a part-time worker.
When considering justification, the ET found that British Airways had a legitimate aim of running a part-time shift pattern that was practical, flexible and popular to allow full staffing of crew members. They decided, however, that the less favourable treatment was not a necessary means of achieving this aim as a non-discriminatory means would have been to pay 53.5% of the full time salary.
British Airways appealed on the grounds that the tribunal had failed to take in to account statistical evidence that showed the practical effect on the worker was limited. Whilst the Employment Appeal Tribunal agreed with the ET on the finding of less favourable treatment, they did determine that tribunals are bound to make a practical assessment of the impact of less favourable treatment when deciding whether this can be justified. The appeal was allowed and the case was sent back to the ET on this point.
What this means for employers:
- Part-time workers are prevented against less favourable treatment on the grounds of working part-time, unless this treatment can be objectively justified by the employer.
- This case shows that any less favourable treatment, however small, will result in a successful finding and the employer will have to show this treatment was justified.
- Employers will have a better case for justification where they have gathered any evidence of the practical impact, have assessed how this works in reality and have looked at alternatives to meet their aim.
- Where complicated or numerous shift patterns are used by the business, employers should look at how they operate for workers in reality, looking at all terms of the contract including working hours, breaks, pay and bonuses.