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British Airways try to argue 3.5% difference in pro-rata pay for part-time workers was “trivial”

Part-time pay needs to accurately reflect the reality of the part-time work. Sounds simple enough, but British Airways managed to get it wrong.

Their rationale?

Full-time = 6 days on, 3 days off.

Part-time = 14 days on 14 days off.

On the basis that part-time workers get double the time off, they get half the pay. Except that this doesn't quite work out when you do the maths…

Mrs Pinaud (along with 628 other cabin crew) highlighted that the part-time contract actually works out at 53.5% of a full-time contract. BA tried to argue that the difference in pay was justified and in particular, that the 3.5% difference was "trivial".

The Employment Appeal Tribunal held that the requirement to work more than 50% of the duty hours of a full-time employee despite receiving only 50% of the latter's salary, engaged the "pro rata principle" in respect of less favourable treatment. This principle states that a part-time worker is entitled to receive not less than the proportion of pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker.

In coming to its conclusion to uphold the judgement of the Tribunal in favour of Mrs Pinaud, the EAT said:

The terms of the Claimant's contract required her to be available for work 130 days per year. The terms of the [full-time] comparator's contract required her to be available 243 days per year. The Claimant was paid 50% of the comparator's salary. Half of 243 is 121.5. There may be advantages to the part-time worker from the way the 14-14 contract was constituted, and these may or may not be found sufficient to establish the justification defence when the case is remitted to the ET. But that does not affect the question of whether the terms of the Claimant's contract, insofar as they require her to be available for 130 days rather than 121.5 days, were prima facie less favourable than those of her full-time comparator: which is all we are concerned with.

It is an important reminder for employers of the need to ensure parity of pay for part-time workers. The pro rata principle is not difficult to understand or apply, but as is highlighted in this case, it's also quite easy to get it wrong without appropriate checks and balances in place.

For more information or assistance on this or any other employment matter, please contact Claire or Rebecca in our employment team.

Case:  British Airways Plc v Pinaud [2018] EWCA Civ 2427 (01 November 2018)

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