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Facts:
The employee, Mr Augustine, worked as a part-time taxi driver for Data Cars Ltd. The company required all drivers, regardless of whether they worked full-time or part-time, to pay a flat weekly ‘circuit fee’ of £148 to access the company’s booking system in order to secure work. Mr Augustine worked around 34.8 hours a week on average, whereas his full-time comparator worked over 90 hours.
Mr Augustine brought a Tribunal claim under Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWRs). He argued that being charged the same flat fee disproportionately impacted part-time workers (as they earned less overall) and amounted to less favourable treatment on the grounds of his part-time status.
Tribunal decision
The Tribunal rejected the claim. It said that Mr Augustine was treated the same as his comparator (as they both paid £148) so there was no less favourable treatment. It also said that even if it had been less favourable treatment, his claim would fail because the fee was not imposed solely because of any part-time status.
Mr Augustine appealed.
EAT decision
The EAT dismissed Mr Augustine’s claim, but sympathised with his position.
The EAT agreed that by charging a flat fee to all employees, Data Cars was not treating part-time and full-time employees in the same way and Mr Augustine was receiving proportionately less pay than his full-time comparator. 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 considered 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.
Mr Augustine appealed.
Court of Appeal decision
The Court of Appeal upheld the Tribunal’s decision, on the basis that the imposition of the flat-rate fee did not breach the PTWRs, as the driver’s part-time status was not the sole reason for the treatment.
However, the majority of the Court (two of the three judges) considered that the interpretation of the PTWRs in McMenemy was incorrect. Ultimately, the Court of Appeal said it was bound to follow McMenemy and could not justify a different decision.
But, the Court did grant permission for Mr Augustine to appeal the case to the Supreme Court and he has done so.
Implications:
The outcome in this case is at odds with other areas of discrimination law – where an employer’s discriminatory motive doesn’t need to be the sole or main reason for their actions – it’s enough if it’s a contributing factor of ‘significant influence’.
However, even though the majority of the Court of Appeal considered the ‘sole reason’ test (from McMenemy) is wrong, they couldn’t decide against the Scottish Court of Session’s decision.
This leaves the final decision to be made by the Supreme Court. If the Court takes a different approach and lowers the test to, for example, an ‘effective and predominant cause’ or ‘significant influence’, this will make it easier for part-time workers to succeed in claims under the PTWRs.
For now, though, it’s still tough for part-time workers to show that less favourable treatment is solely due to part-time status.
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