A recent case involving BA has highlighted the need to look carefully at the way part time staff are treated and paid. BA’s part time cabin crew member bought a claim against the airline because the shift pattern she worked meant that she needed to be available for 53.5% of the hours of her full time colleagues were available, but received only 50% of the pay. The Employment Tribunal agreed with the employee’s claim and found that she had been treated less favourably.
In a situation like this, employers can put forward a defence that a workplace rule which seems to impact unfairly on part time employees is not unlawful discrimination because it can be objectively justified. BA argued that, in reality, although the part time employee was required to be available for more hours, she was actually required to work fewer hours pro rata than her full time colleagues. BA appealed, making the point that the Employment Tribunal were wrong to find that, on the face of it, the employee had been treated less favourably and that the Tribunal had failed to consider the practical impact of the situation. The Court of Appeal was satisfied that, by having to be available for work (irrespective of the hours actually worked) the part time employee was treated less favourably and that, on the face of it, this was unlawful discrimination on the grounds of her part time worker status.
The Court of Appeal did agree that if BA were able to show that, statistically, the employee concerned worked less than 50% of the hours of her full time colleagues, then it would be difficult for a Tribunal to award compensation of 3.5% of the salary claimed (or indeed other compensation which the employee might argue was justified in the circumstances). The case has been referred back to an Employment Tribunal to consider the facts again.
It’s important that you’re clear about the way part timers are treated when compared to their full time equivalents and it’s useful to review this from time to time as different patterns emerge. We’re happy to pop out and talk this through with you. Let us know when suits!