Part-time workers are entitled, under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations), not to be treated less favourably than their full-time counterparts.
To succeed in bringing a claim, a part-time worker must demonstrate that they have received less favourable treatment compared to a comparable full-time employee, either in relation to the terms of their contract or by being subjected to a detriment by their employer. Crucially, the claim must establish that the treatment was ‘on the ground of’ the worker’s part-time status.
The case of Augustine v Data Cars Ltd, which has been making its way through the Courts, has explored what constitutes less favourable treatment and, more significantly, clarified the legal test for causation, specifically, the meaning of ‘on the ground of.’
The Court of Appeal recently held that it was obliged to apply a more restrictive interpretation of causation. In particular, the part-time worker must prove that the sole reason for the less favourable treatment was their part-time status, rather than it being merely one contributing factor among others.
Sometimes part-time workers can face disadvantages, not because of clear and direct discrimination but sometimes for more innocent reasons, such as poorly designed workplace policies which were created around the assumption of full-time workers. Things like flat fees, an inflexible benefit system and unfair performance metrics that do not scale or change with hours can contribute to a potentially discriminatory environment against part-time workers.
Interestingly though, the test which applies to part-time workers requires them to meet a higher threshold to demonstrate discrimination than is typically required in other areas.
The Facts in Augustine v Data Cars
The Claimant, Warren Augustine, was a part-time private hire driver for the Respondent, Data Cars Ltd. The Claimant brought a claim under the Regulations that he had been treated less favourably than comparable full time workers.
The Claimant’s argument was that because all drivers were required to pay a flat weekly rate of £148 as a circuit fee in order to access the Respondent’s booking system, this disproportionately impacted part-time drivers and reduced their earnings. In effect, a larger proportion of part-time drivers’ hourly earnings went towards paying this flat weekly rate, placing them at a financial disadvantage compared to their full-time colleagues.
The Decisions in Augustine v Data Cars so far
The Employment Tribunal (ET) dismissed the claim, taking the view that, as this fee was applied equally to all drivers, there was no difference in the treatment of full time vs part time drivers. As there was no difference in the treatment, there could be no less favourable treatment. Additionally, the ET also stated that in the event there was less favourable treatment, there was no evidence to suggest that the Respondent had actively intended to treat the Claimant less favourably for the reason that he was a part-time worker.
On appeal, the Employment Appeal Tribunal (EAT) took a different view. It agreed with the Claimant that while the flat £148 fee was uniformly charged across the whole workforce, its practical effect was not uniform. Once the fee was charged, the Claimant – and other part-time drivers – received proportionately less pay than full-time drivers. In terms of what caused this treatment, the EAT observed that there had been considerable conflict over what the legal test should be surrounding causation, and it felt bound to follow a previous case (McMenemy v Capita Business Services) that a Claimant must show their part time status was the sole cause of the less favourable treatment. The EAT therefore dismissed the appeal.
Following the EAT ruling, the Claimant appealed to the Court of Appeal on the grounds that the incorrect test (the sole cause test) was used and that in any event, the McMenemy judgment was legally wrong, and that it should not be followed. The majority of the Court of Appeal agreed to apply the McMenemy approach to ensure consistency but found another test which is more claimant friendly to be more appropriate, namely that being a part-time worker need only be one of the reasons for the less favourable treatment. Given this uncertainty, the Claimant was granted leave to appeal to the Supreme Court, so that a definitive approach can be established.
Why the Supreme Court decision matters
The Supreme Court, as the highest Court in the country, will have the final say and set an important, defining, precedent on the process for how part-time workers will bring discrimination claims.
Needless to say, the determination by the Supreme Court on which approach is correct, whether that be the stance that part-time status has to be the sole reason for the treatment or the alternative perspective that it just needs to be one of the reasons for the less favourable treatment will be of vital importance. The selected interpretation will have a key bearing on the Regulations. Specifically in cases where multiple factors contribute to disadvantage but where part-time status remains the predominant and main reason for the less favourable treatment.
Hopefully, the Supreme Court’s choice will set a new and definitive legal precedent that clarifies the boundaries of protection for part-time workers and clears up the ambiguity in this legal debate.