On 13 August the Supreme Court allowed the appeal in the case of Augustine (Appellant) v Data Cars Limited (Respondent) – UK Supreme Court. It held that the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the 2000 Regulations) prohibit less favourable treatment of part-time workers where their part-time status is an effective cause of the impugned treatment; it need not be the sole cause.
The appellant, Warren Augustine (Mr A), was a private hire driver who worked for the Respondent, Data Cars Ltd. He worked fewer hours per week than typical full-time drivers. All drivers (whether full or part-time) were charged a weekly fee to access the respondent’s booking system. This fee, known as the circuit fee, was set at a fixed rate for all drivers regardless of the number of hours they worked. Mr A claimed that the application of the fixed circuit fee was less favourable treatment of him as a part-time worker contrary to regulation 5 of the 2000 Regulations as effectively he paid a higher fee per hour than a comparable full-time driver.
The Employment Tribunal held that Mr A was not treated less favourably than a comparable full-time driver. In the alternative, the tribunal found that the reason Mr Augustine was charged a circuit fee was that it was necessary to enable the respondent to earn revenue from its business, not because he worked fewer hours. His claim would therefore fail because the circuit fee was not charged on the “sole ground” that he was a part-time worker. On Appeal to the EAT the key element was the causation test and whether meaning of the words “on the ground that” as set out in Regulation 5(2) of the 2000 Regulations extends to cover situations where the protected characteristic is an effective cause, but not the sole cause, of the less favourable treatment complained about. In the EAT and the majority of the Court of Appeal, the court would have concluded that less favourable treatment in the 2000 Regulations will be found even if it is not the sole cause of that treatment. However, both held that they were bound by the case of McMenemy v Capita Business Services Ltd [2007] CSIH 25; [2007] IRLR 400 (“McMenemy”)) which considered that part-time status had to be the sole ground and so dismissed the appeal. However, the Court of Appeal granted permission for an appeal to the Supreme Court so that the causation issue could be resolved.
The 2000 Regulations were introduced to implement the Part-time Work Directive 97/81/EC of 15 December 1997 which implemented the EU Framework Agreement. Clause 4.1 of that Agreement sets out that part-time workers shall not be treated less favourably than full-time workers “solely because they work part time unless different treatment is justified on objective grounds”. Regulation 5(2) of the 2000 Regulations sets out that the right under Regulations 5(1) applies only if (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds”. It does not include the word sole or solely in setting the test for causation and so the case against Mr A is that the 2000 Regulations should be interpreted narrowly, and consistently with the Part-time Work Directive and clause 4.1 of the Framework Agreement.
The Supreme Court looked at the causation test developed in the context of direct discrimination which considers “on the ground that” and held that these words were clear that if the prohibited ground had a significant or substantial influence on or was an effective cause of the impugned treatment or outcome, direct discrimination would be made out.
The Supreme Court pointed out that UK government did not adopt the “solely because” language in regulation 5. The 2000 Regulations set out that the right under Regulations 5(1) applies only if (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds” (regulation 5(2)). The word only in this context means that both conditions have to be satisfied. The language of the 2000 Regulations keeps language from the domestic discrimination law. To require that the claimant’s part-time status be an effective, even if not the sole, cause of the less favourable treatment is consistent with the language of regulation 5(2) of the 2000 Regulations and its purpose. To hold otherwise is inconsistent with the standard approach to causation in discrimination cases and risks uncertainty and unreasonable outcomes.
What does this mean for employers?
The decision of the Supreme Court brings the law on part-time workers discrimination in line with the general principles of discrimination. This may mean that it is easier for part-time workers are able to bring a claim as they will only need to establish that their part-time status was an “effective cause” of their less favourable treatment. However, the existence of other causes of the treatment may be relevant to the question whether the treatment is justified on objective grounds or to the amount of compensation to be awarded but does not mean that the right not to be treated less favourably on the ground of part-time status for the purposes of regulation 5(1) does not arise. While the Supreme Court has broadened the scope for part-time workers to bring claims, employers can still rely on the reasons for objectively treated part-time workers differently in particular cases. Employers therefore need to ensure that any workplace arrangements proportionately pursue a legitimate business aim and that this can be evidenced. Employers should therefore pay particular attention to any matters where they treat part-time employees differently for example, pay arrangements including bonuses, flat fees, deductions, entitlement to benefits, and entitlement to time off.