The rights of part-time workers, and in particular how the law interprets the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations), continue to be the subject of judicial scrutiny. Recent cases have highlighted significant uncertainty for both employers and employees regarding when part-time status gives rise to a successful claim for less favourable treatment. We recently wrote about the decision in Mireku v. London Underground Ltd, which underscored the importance of understanding these Regulations.
In Augustine v. Data Cars Ltd, the Court of Appeal has handed down a key judgment on the approach to causation in these claims. When issuing the judgment, the court granted the appellant leave to appeal the decision, meaning the law on this point could change in future.
The causation test
Under the Regulations, part-time workers have the right not to be treated less favourably than a full-time worker on the ground that they are a part-time worker. Causation, in this context, means showing that the less favourable treatment was because the worker was part-time. The law requires this connection so, if a part-time worker is treated differently, they must prove that being part-time was the reason (or at least a significant reason, depending on the test applied) for that treatment.
There is, however, a notable conflict in case law regarding the correct test for causation. In McMenemy v. Capita Business Services Ltd, the Scottish Court of Session held that a claimant must show their part-time status was the “sole cause” of less favourable treatment. In contrast, the Employment Appeal Tribunal (EAT) in Sharma v. Manchester City Council held that being a part-time worker need only be one of the reasons for the treatment, establishing a broader, more claimant-friendly test.
Employment Tribunal decision
Mr Augustine was employed by Data Cars Ltd as a driver on a part-time basis, working an average 34.8 hours per week. All drivers were required to pay a weekly fee of £148 for access to the company’s booking system, which Mr Augustine argued subjected part-time workers to a detriment as they were obliged to pay a greater share of their earnings.
The Employment Tribunal (ET) dismissed the claim, finding that Mr Augustine had not been subject to a detriment based on his part-time status, as the fee was applied equally to full-time and part-time workers. The ET applied the test set out in McMenemy, determining that Mr Augustine’s part-time status was not the sole cause of the less favourable treatment and therefore it dismissed his claim.
EAT decision
Mr Augustine appealed the decision to the EAT on the basis that the ET had failed to consider properly the nature of the fee and the manner in which it subjected part-time workers to less favourable treatment when considering the fee as a proportion of earnings.
Whilst the EAT did find that the ET had erred in finding that the fee did not amount to less favourable treatment of part-time workers, it nevertheless dismissed the appeal. The EAT determined that there was potential for the fee to amount to less favourable treatment of a part-time worker when considering it as a proportion of earnings. However, the EAT also found there could still be no finding of less favourable treatment contrary to the Regulations as Mr Augustine’s part-time status could not be said to be the “sole reason” for imposition of the fee. As such, the causation test in McMenemy was not met.
For further detail on the facts of the case and the ET and EAT decisions, you can read our previous article on this topic here.
Court of Appeal decision
Following the EAT judgment, Mr Augustine appealed to the Court of Appeal (CA) on two grounds. He argued that:
- the EAT had erred in its approach by treating the McMenemy test as binding (ground 1); and
- the McMenemy judgment was wrong in law and the EAT ought not to have followed it (ground 2).
The CA set aside ground 1 on the basis that it is being considered in a social security case in the Supreme Court (Jwanczuk) and, as such, there was no need for the CA to reach a decision on it. The CA did, however, determine ground 2.
The Court of Appeal’s decision was unanimous in outcome but divided in rationale. While Laing LJ supported McMenemy as correctly decided, the majority expressed reservations, finding the reasoning in Sharma more persuasive. Nonetheless, the majority felt constrained to apply McMenemy to ensure consistency across the UK, pending clarification from the Supreme Court.
Comment
Whilst this decision provides interim clarity as to the nature of causation in the context of less favourable treatment claims under the Regulations, the legal position remains unsettled. With permission for a Supreme Court appeal and the related Supreme Court decision pending in Jwanczuk,the approach to causation in part-time worker claims may well change. Employers should keep an eye on developments in this area, and review the basis and impact of any differential treatment of part-time workers to mitigate risk.
