Part-time worker discrimination and the reason for it

Part-time status need only be an effective cause of less favourable treatment, and not the sole cause.

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. 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. Mr Augustine appealed.

The Court of Appeal also dismissed Mr Augustine’s appeal. While a majority considered that McMenemy was wrongly decided, it agreed that it was desirable that the decision be followed, given that it related to a statutory provision applicable throughout Great Britain. Mr Augustine took his case to the Supreme Court.

Supreme Court decision

The appeal was allowed.

A worker’s part-time status only has to be an effective cause of less favourable treatment; it need not be the sole cause. To hold otherwise would be inconsistent with the standard approach to questions of causation in discrimination cases and would risk uncertainty and unreasonable outcomes.

The relevant legislation (reg. 5(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000) protects a part-time worker where treatment is on the ground that they are part time and is not objectively justified. That phrase has long meant, throughout discrimination legislation, a significant or effective cause, not necessarily the only one. The EU Framework behind the regulations was worded more strictly, protecting workers ‘solely because’ they worked part time, but the government deliberately chose not to copy that wording, and had the power to give wider protection than EU law required.

The existence of other causes of the treatment may be relevant to whether the treatment is justified or to the amount of compensation awarded. However, it did not mean that the right not to be treated less favourably on the ground of part-time status did not arise.

Comment

As we pointed out in our comment on the Court of Appeal’s decision, that outcome was 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’. This judgment brings welcome clarity, overruling a longstanding precedent of the Scottish Court of Session in doing so.