In August last year, we wrote about the difference in approach to less favourable treatment claims made under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("PTW Regs") in English and Scottish tribunals. In McMenemy v Capita Business Services Ltd ("McMenemy"), the Court of Session approved a Scottish Employment Appeal Tribunal ("EAT") judgment holding that, for a claim to be successful, the part-time worker's status had to be the sole reason for less favourable treatment.
In England and Wales, where tribunals are not bound by judgments of the Court of Session, different approaches have sometimes been taken. In some cases, it had been concluded that it was enough if the part-time status was the predominant rather than the sole reason for less favourable treatment. However, this left claimants and their solicitors in England and Wales unsure as to which approach might be followed.
The Augustine Case and the EAT's Ruling
In July 2024, the EAT in England heard Augustine v Data Cars Ltd ("Augustine") and, on this occasion, followed the Scottish position. The judgment made it clear that the EAT felt bound to follow McMenemy to ensure consistency of approach, which is in the public interest. However, it made clear it did not believe that McMenemy had been correctly decided. Unsurprisingly, the EAT judgment in Augustine was appealed to the Court of Appeal.
The Court of Appeal judgment in Augustine
The Court of Appeal considered whether the judgment in McMenemy had been correctly decided but was unable to reach agreement. The PTW Regs implement the EU Part-time Work Directive, which in turn implements the European Framework Agreement on Part-time Work ("Framework Agreement"). The Framework Agreement states that part-time workers should not be treated less favourably than comparable full-time workers "solely because they work part-time...". The PTW Regs use slightly different language, providing that the protection from less favourable treatment applies "only if (a) the treatment is on the ground that the worker is a part-time worker…".
Two of the Court of Appeal judges were of the view that the phrase "on the ground that" had an established meaning prior to the implementation of the PTW Regs: for a claim to succeed, the protected characteristic had to be the "effective and predominant" or "real and efficient" cause of less favourable treatment, it did not have to be the sole cause. They therefore believed McMenemy had been wrongly decided.
However, the third judge disagreed. In her view, the drafters of the PTW Regs understood that there could be more than one ground for treatment and intentionally used the phrase "only if" to reflect the use of "solely" in the Framework Agreement.
Despite these differing views on McMenemy, the appeal was unanimously dismissed. Although not bound by the Court of Session, the judges stated that where a decision has been given on the meaning of a statutory provision applicable throughout Great Britain or the UK, "it is highly desirable that this Court should follow the previous decision and leave it to the Supreme Court to resolve the difficulties".
Where now?
It would certainly be preferable for an appeal to the Supreme Court to proceed. While, for the time being, both tribunals and the EAT in England, Wales and Scotland will have to approach claims of less favourable treatment by part-time workers in the same way, it is unsatisfactory to have senior judges doubting that that approach is correct.
Requiring a claimant to show that their part-time worker status is the sole reason for any alleged less favourable treatment sets a high bar. This also means that less favourable treatment claims under the PTW Regs are currently more difficult to prove than claims brought under other areas of discrimination law.
While the current position may discourage part-time workers from making claims, if an appeal to the Supreme Court proceeds, claimants may be able to request that applications made to the employment tribunal are sisted (put on hold) pending its outcome. The Court of Appeal has granted leave to pursue such an appeal if the appellant wishes to do so.
