Part-time Status Need Not Be Only Reason for Less Favourable Treatment

The Supreme Court has clarified the meaning of Regulation 5(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, ruling that it does not require that part-time status be the sole ground or reason for less favourable treatment (Augustine v Data Cars Limited).

The case concerned a driver who worked for a minicab company. He worked fewer hours per week than typical full-time drivers. All drivers were charged a fixed weekly fee of £148 to access the company's booking system, regardless of the number of hours they worked. He brought an Employment Tribunal (ET) complaint, arguing that the application of the fixed fee was less favourable treatment of him as a part-time driver contrary to Regulation 5 because it had the effect that he paid a higher fee per hour than a comparable full-time driver.

The ET found that he worked an average of 34.8 hours per week compared with 43 hours per week for all the company's drivers, and he was therefore a part-time worker. The fact that all drivers were required to pay the fixed fee irrespective of the number of hours worked meant that it had a harsher impact on those working fewer hours. However, the ET held that there was no less favourable treatment, on the basis that treating all workers the same is not discriminatory. Alternatively, any less favourable treatment was not 'solely' because he worked part time.

Dismissing his appeal against that decision, the Employment Appeal Tribunal (EAT) accepted that he had been, at least in part, treated less favourably because he worked part time. However, the same could be said of many drivers who worked full time but less than his chosen comparator, who worked over 90 hours per week. The EAT could not therefore say that part-time status was the sole reason for the less favourable treatment. The EAT would have concluded that it was an error to ask whether part-time status was the sole reason for the treatment, but considered itself bound by the contrary decision of the Inner House of the Court of Session in Scotland in McMenemy v Capita Business Services Ltd. After that decision was upheld by the Court of Appeal, the driver appealed to the Supreme Court.

The Court observed that Clause 4.1 of the EU framework agreement on part-time work, to which EU member states were required to give effect by the Part-time Work Directive, provided that part-time workers should not be treated in a less favourable manner solely because they work part time. However, even if the word 'solely' was intended to rule out cases involving multiple causes for differential treatment, Section 19(1) of the Employment Relations Act 1999 had given the Secretary of State free-standing power to secure that persons in part-time employment were treated no less favourably than those in full-time employment. The Secretary of State had not adopted the 'solely because' wording in Clause 4.1, instead adopting the well-established 'on the ground of' test.

In the Court's view, to require that the driver's status as a part-time worker be an effective cause of the less favourable treatment, even if it was not the sole cause, was consistent with the clear language of Regulation 5(2) and the protective purpose of Regulation 5. To hold otherwise would be inconsistent with the standard approach taken to questions of causation in discrimination cases and would risk uncertainty and unreasonable outcomes. The appeal was allowed.