P claimed that she had suffered less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations by demonstrating that she had to be available for 53.5% of the hours of a full-time counterpart, while receiving only 50% of the salary. The Employment Tribunal found that although the part-time shift pattern had a legitimate objective, it was not a necessary or proportionate means of achieving the objective. BA could have avoided the discriminatory treatment by paying her 53.5% of a full-time salary.

BA appealed to the EAT on the basis that the ET had failed to assess the practical impact of the treatment when looking at objective justification – BA argued that although P was required to be available for more than 50% of a full-time worker’s hours (despite receiving 50% of a full-time worker’s pay), she actually worked fewer days on a pro-rata basis than a full-time comparator, and that this needed to be considered. The EAT found that this argument was relevant to justification and agreed that there was prima facie less favourable treatment. It remitted the case to a freshly constituted ET to consider the objective justification point.

The Court of Appeal disagreed with BA that the EAT had erred in reaching this conclusion, reiterating the ET’s findings that the requirement for P to be available for 53.5% of the hours of a full-time counterpart for 50% of the salary is prima facie unfavourable treatment. Whether or not the advantages to a part-time contract established an objective justification defence was a question for the ET. The Court of Appeal expressed doubt that, in the event that BA was unsuccessful, an ET would conclude that it would be “just and equitable in all the circumstances” to award P compensation of 3.5% of her salary over the relevant period (or that the loss “attributable to the infringement” would amount to the same).

The Court of Appeal’s finding is unsurprising. However, it is somewhat good news for employers (in particular those employing similar shift patterns) that if BA’s objective justification defence fails, the Court of Appeal has expressed doubt over the level of compensation payable suggested by the first instance ET.

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