Employment Law Cases

Part-time worker discrimination and the reason for it

Part-time worker discrimination is limited to instances where the part-time status is the ‘sole’ reason for the alleged discriminatory treatment.

Background

Mr Augustine worked as a taxi driver for Data Cars. He was charged a flat rate fee of £148 per week for access to their database. The same fee was charged to all taxi drivers, regardless of how many hours they worked. Mr Augustine worked around 34.8 hours a week on average and his comparator worked over 90 hours. He brought a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 – arguing that being charged the same flat fee amounted to less favourable treatment on the grounds of his part-time status.

The tribunal found that Mr Augustine was treated the same as his comparator (as they both paid £148) so there was no less favourable treatment. It also found that even if it had been less favourable treatment, his claim would fail in any event because he was not charged the fee solely because he was a part-time worker. Mr Augustine appealed.

The EAT agreed with Mr Augustine that by charging a flat fee to all employees, Data Cars was not treating part-time and full-time employees in the same way. Mr Augustine was receiving proportionately less pay than his full-time comparator, once the fee had been deducted from take-home pay. The EAT then looked at whether the less favourable treatment was because Mr Augustine worked part time. Its view was that the correct test should be whether part-time status was an ‘effective and predominant’ cause of the treatment. However, the EAT found that there were conflicting decisions of other EATs on the point and therefore held that it was bound by the judgment of the Scottish Court of Session (equivalent to the Court of Appeal in England and Wales) in McMenemy v Capita Business Services. In McMenemy, the test was only if the treatment was solely for the reason of being a part-time worker. The EAT therefore upheld the tribunal’s decision on the basis of the ‘sole reason’ test – the charging of the fee was not on the sole ground of being a part-time worker and therefore the claim was dismissed. Mr Augustine appealed.

Court of Appeal decision

Mr Augustine’s appeal was dismissed.

It upheld the tribunal’s decision that the imposition of the flat-rate fee did not breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 as the driver’s part-time status was not the sole reason for the treatment.

In doing so, it applied the test set out in McMenemy. However, a majority in the Court of Appeal considered that McMenemy was wrongly decided but agreed that it was highly desirable that the decision be followed, given that it related to a statutory provision applicable throughout Great Britain.

As the employment tribunal operates in Scotland as well as England and Wales it concluded that it is very important that the rules of precedent are applied in a way which avoids inconsistent decisions being reached in different jurisdictions.

However, given the Court of Appeal’s misgivings about McMenemy, it granted leave to appeal to the Supreme Court so that the issue can be decisively resolved.

Comment

The outcome in this case is at odds with other strands of discrimination where a discriminatory reason for an employer’s conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause – that it is of ‘significant influence’.

However, the Court of Appeal clearly felt their hands were tied in going against a decision made by a court of equivalent standing in Scotland and so the Supreme Court will now be asked to apply their wisdom to the question.