Introduction
The Employment Appeal Tribunal (EAT) has recently confirmed that, to succeed with a claim under the Part-time Workers Regulations, the claimant’s part-time status must be the “sole reason” for the less favourable treatment. The Court of Appeal has just confirmed the “sole reason” causation test in a separate case but granted leave to appeal to the Supreme Court. In the meantime, we provide a practical reminder of how the Part-time Workers Regulations operate in practice.
Case overview
In Mireku v. London Underground Ltd, Mr Mireku claimed that he was treated less favourably in relation to the cancellation of overtime compared to full-time workers. Mr Mireku started a job share arrangement with a colleague in January 2022, under which they each worked two weeks “on” and two weeks “off”. While off sick in June 2022, Mr Mireku told his manager that he did not want to return to the Paddington area and his manager made arrangements for him to work from Whitechapel instead. Although he worked in Whitechapel, his employment remained under the Paddington budget. At various points after the job share arrangement started, Mr Mireku requested to do advertised overtime shifts but managers either told Mr Mireku that he could not work overtime during his “off” weeks or cancelled overtime for which he had signed up. The Paddington management also restricted the amount of overtime Mr Mireku could complete (in principle) because he remained under that area’s budget. In November 2022, after being moved to Edgware Road and Euston Square, Mr Mireku was not added to the overtime mailing list for these locations, staying instead on the Paddington list.
The appellant argued that these actions related to overtime were detriments due to his part-time status, in breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations).
Employment Tribunal findings and Employment Appeal Tribunal judgment
The Employment Tribunal (ET) found that the cancellation of Mr Mireku’s overtime was caused by confusion over his work arrangements, not his part-time status. As a result, it dismissed his claims.
The EAT rejected Mr Mireku’s appeal on the grounds that the previous case law required that a claimant’s part-time status must be the sole reason for the less favourable treatment about which they are complaining. We recently wrote about the most recent case to confirm this point and you can read more about that case (Augustine) here.
The EAT highlighted that Mr Mireku’s case would have failed, regardless of whether his part-time status had to be the “sole reason” for the less favourable treatment or the “effective and predominant cause”. This was because the comparators to which he referred were not comparable full-time workers, which is a necessary condition under the Regulations.
The Court of Appeal recently heard an appeal in Augustine and its judgment confirms the “sole reason” causation test, at least for now. The Court of Appeal has granted leave to appeal to the Supreme Court due to earlier conflicting authorities on this question.
Key elements for a claim under the Regulations
This case is a useful reminder of some of the fundamental principles that apply in the Regulations:
- The Regulations protect part-time workers from being treated less favourably than comparable full-time workers.
- The comparator must be a full-time employee on the same type of contract as the part-time worker, doing the same or broadly similar work, normally at the same establishment.
- The Regulations do not allow for hypothetical comparators (which are permissible in discrimination claims under the Equality Act 2010).
- The Regulations cover less favourable treatment in the terms of the part-time worker’s contract and being subjected to a detriment by the employer.
- As we have just explored, at least pending a judgment from the Supreme Court in Augustine, the claimant’s part-time status must be the sole reason for the less favourable treatment.
- An employer will not be liable for the less favourable treatment if they can show that it was objectively justified.
- Unless it is inappropriate to do so, the pro rata principle must be applied in determining whether an employer has treated a part-time worker less favourably. This means that an employer must give part-time workers at least a pro rata entitlement to pay, holidays and other benefits.
Keep an eye out for our update on the Court of Appeal’s judgment in Augustine and, in due course, any appeal in that case to the Supreme Court. In the meantime, you may wish to audit the terms and conditions on which you engage part-time workers. If you have any doubts over whether those terms comply with the Regulations, please get in touch with your usual Dentons contact for advice.
