In a world where flexible and part-time working arrangements are increasingly in demand, employers need to remain conscious of the laws which apply to these types of working arrangement, as well as how these legal principles are being interpreted by the courts and tribunals.
In a judgment recently handed down in the Augustine v Data Cars Ltd case, the Court of Appeal has explored how regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 should be interpreted for the purposes of ascertaining less favourable treatment of part-time workers.
We explore the background and decision of this Court of Appeal case below.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 prevent part-time workers from being treated less favourably than comparable full-time workers.
Regulation 5 sets out the basis of this protection and states that the right not to be treated less favourably extends to the terms of the part-time worker’s contract as well as to 'any other detriment by any act, or deliberate failure to act, of his employer'.
Regulation 5 goes on to make it clear that the protection applies only where the less favourable treatment is 'on the ground' that the worker is a part-time worker and where the treatment cannot be objectively justified.
The question of how 'on the ground' should be interpreted is specifically what the Court of Appeal has been considering recently.
The facts of this case are satisfyingly simple. Mr Augustine was a driver employed by Data Cars Ltd. He worked part-time hours.
In order to have access to Data Cars’ booking system, all drivers are required to pay Data Cars a ‘circuit fee’ of £148 per week. The same sum was charged to all drivers, regardless of whether they worked full or part-time.
Mr Augustine claimed this arrangement breached regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. He argued that he was being treated less favourably because the circuit fee wasn’t being pro-rated for part-time workers.
At first instance, the Employment Tribunal dismissed Mr Augustine’s claim.
The Employment Tribunal found firstly that he was not treated less favourably than a full-time worker because both were charged exactly the same circuit fee. The judge then went on to say that, even if this is incorrect, the claim would still fail because 'in any event the charging of the circuit fee was not on the sole ground that he was a part-time worker.'
Mr Augustine appealed this decision to the Employment Appeal Tribunal, where the appeal was upheld in part.
The Employment Tribunal had failed to take into account that Mr Augustine was effectively paying a higher circuit fee than the full-time comparator if it was considered as a proportion of hours worked and, or alternatively, that his hourly rate of pay would be lower than that of a full-time worker once a reduction is made for the circuit fee. This finding is unsurprising.
More significantly, the Employment Appeal Tribunal also discussed the Employment Tribunal’s alternative finding that the reason for charging the circuit fee would need to be solely on the ground that Mr Augustine was part-time, in order for regulation 5 to apply.
In fact, the Employment Appeal Tribunal indicated that it felt the appropriate test should be whether the part-time work was the effective cause of the treatment, rather than the sole reason. Despite this, the Employment Appeal Tribunal felt compelled to follow a previous decision of the Court of Session, in the case of McMenemy v Capita Business Services Ltd, and apply the narrower test of whether the part-time status was the sole reason for the treatment.
Mr Augustine therefore appealed again.
The Court of Appeal considered:
On the first point, the majority found that the McMenemy v Capita judgment was incorrect and that regulation 5 should be interpreted more widely to mean that the part-time status needs to be an effective and predominant cause of the less favourable treatment, but doesn’t necessarily need to be the sole cause.
However, Mr Augustine’s appeal was still dismissed because the Court of Appeal found that it nevertheless needed to follow the McMenemy v Capita decision to try and ensure consistency of application across Great Britain.
As it stands, this narrow interpretation of the causation test means that it's more difficult for a part-time worker to succeed in a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. All an employer would need to do is to show that there were other reasons for the less favourable treatment, in addition to the part-time status, and the claim could not succeed.
Given the majority’s finding that the McMenemy v Capita decision is incorrect however, permission has been granted for an appeal to the Supreme Court to decide the appropriate test which would apply to all jurisdictions.
If this appeal does indeed happen then the interpretation of regulation 5 is likely to change to match the wider causation test which is applied in other discrimination cases, so watch this space!
In the meantime, this decision is useful for employers to be aware of as it confirms that there could be a fairly generous route available for defending a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
For further information or advice, please contact our employment team.
