The Court of Appeal (CoA) has upheld a ruling that a member of British Airways (BA) cabin crew was treated less favourably by her former employer on the grounds she was a part-time worker, but remitted the case to a new tribunal hearing.
Florence Pinaud joined BA in June 1985 as a full-time cabin crew member and was promoted to the rank of purser – or chief cabin crew – in 1993. She was employed on a full-time contract and paid on the basis she worked 243 days per year.
On her return from maternity leave in 2005, Pinaud requested a part-time contract described as a “14-14” contract, meaning she would be on duty for 14 days and off duty for the following 14 days. The court heard that this contract meant she had to be “available for work” for 130 days each year.
In April 2015, BA terminated Pinaud’s employment when she took voluntary redundancy. Court documents showed she submitted a written grievance on the same day alleging she had been discriminated against as a part-time worker.
She argued the number of days on which she was required to be available to work each year (130) was more than half the number of days a full-time worker in the same job was required to be available (243), yet she was paid exactly half of the equivalent full-time salary.
Pinaud brought the complaint to the Reading Employment Tribunal (ET) in August 2015 following an unsuccessful internal appeal. Judge Vowles ruled Pinaud had been treated less favourably on the grounds she was a part-time worker.
BA presented a “range of statistics” showing the actual hours worked by Pinaud and a full-time comparator. But the tribunal based the ruling on the “requirement to be available for work on specific number of days and not on the actual work” carried out on those days.
Vowles said that 50 per cent of 243 days would be 121.5 days, and Pinaud had to be available for 130 days. This meant she had to be available for 53.5 per cent of the days which her full-time equivalents had to be available, but was paid 50 per cent of their salary.
BA appealed to the Employment Appeal Tribunal (EAT) in September 2017. Judge David Richardson held the tribunal had been “right to compare the number of days [Pinaud] was required to be available for work”, but the ET “erred in their approach to the justification”.
He set aside the EAT’s decision and remitted it to the ET for re-hearing, however BA appealed the EAT’s decision prior to the re-hearing taking place.
The Court of Appeal upheld the ruling saying the terms of Pinaud’s contract were “less favourable than those of her full-time comparator”.
Justice Bean agreed with the EAT that the case should be remitted to the ET, and they “will first have to consider the justification defence”. If that is rejected, Bean added the ET will “then have to go on to consider remedy”.
Head of legal at CIPD HR-inform, Andrew Willis, said the case is a useful reminder of how the protection for part-time workers operates in practice.
“This case goes to show that the smallest discrepancy can lead to a significant issue with other part-time employees likely to take note and start questioning their treatment with the employer,” Willis said.
Laura Morrison, senior practice development lawyer at Dentons, told People Management the case shows the CoA only had “half the story”.
“It’s important that employers look at their own record-keeping to see what information is available in case someone were to challenge their employer, like in this case.”
But Melanie Stancliffe, partner at Irwin Mitchell, said many companies “don’t keep good track” of their part-time and full-time workers’ hours.
“Statistics are your friend when it comes to contracts,” Stancliffe said. “Employers have to look at the granular details when it comes to hours worked, which can be harder for larger employers.”
A BA spokesperson said the CoA judgment “clarified an important aspect of this case. The matter is now returning to the ET for full consideration.”
Pinaud could not be reached for comment.
During the original tribunal hearing, the court heard 628 of Pinaud’s colleagues “have presented tribunal claims against [BA], which have been stayed pending the outcome of [Pinaud’s] appeal”.