Supreme Court judgment aligns approach to protection for part-time workers
In Augustine v Data Cars Limited, the Supreme Court unanimously held that a part-time worker's status does not have to be the sole cause of less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the PTW Regs"). It is sufficient that the part-time status is an effective cause of the treatment.
This resolves a conflict that started over two decades ago, with a Scottish Employment Appeal Tribunal ("EAT") judgment that held that the sole cause of less favourable treatment must be the part-time worker status. This approach gained greater traction in 2007 when it was adopted in the Scottish Court of Session case of McMenemy v Capita Business Services Ltd. English employment tribunals and the EAT sitting in England are not bound by decisions of the Court of Session. While some followed the Scottish approach, others did not, leading to uncertainty for claimants south of the border. The need to meet the "sole cause" test in Scotland also set a much higher bar for part-time worker claims than was applied to other types of discrimination claim.
A brief history of Augustine v Data Cars Ltd
The claimant in Augustine v Data Cars Ltd worked as a private hire driver for Data Cars Ltd. All drivers were required to pay a fixed weekly "circuit fee" of £148 for access to the company's booking and dispatch system. The consequence was that, although the fee paid by the claimant was identical to that of all the other drivers, it represented a greater proportion of his earnings.
The employment tribunal rejected the claim, finding that the fee charged was to enable Data Cars to generate revenue rather than because the claimant worked part-time. It also concluded that the claim would, in any event, fail because the part-time worker status was not the sole reason for the imposition of the fee. The decision was appealed, and the English EAT and Court of Appeal subsequently both recognised the difficulty with the reasoning given by the Scottish Court of Session in McMenemy but felt bound to follow the case to ensure consistency of approach, which is in the public interest. The Court of Appeal did, however, conclude that it would be highly desirable to "leave it to the Supreme Court to resolve the difficulties".
The Supreme Court judgment
The Supreme Court unanimously allowed the claimant's appeal. The meaning of the phrase "on the ground that" in anti-discrimination legislation was established prior to the PTW Regs being introduced. A protected characteristic need only have a significant or substantial influence on, or be an effective cause of, the treatment complained of by a claimant. It did not have to be the sole reason.
Although the language used in the Framework Agreement on part-time work used the phrase "solely because they work part-time", the Supreme Court considered the omission of the word "solely" from the PTW Regs and indicated that the domestic regulations were intended to adopt the established effective cause approach already relied upon in anti-discrimination legislation. The Supreme Court reconciled the different language used in the Framework Agreement and the PTW Regs on the basis that the phrase "solely because" was intended simply to exclude situations in which part-time status was merely incidental and no more than a background fact.
What does this mean for employers?
For employers, this judgment means PTW Regs claims can no longer be defended simply by pointing to an additional cause for less favourable treatment, for example by identifying a business reason for the universal application of a policy. It also means that employers will need to examine the real-world impact of workplace policies and be aware that treating everyone the same is not the same as treating everyone equally.
Where part-time status does form part of the causal explanation for less favourable treatment, satisfying the "effective cause" test, employers may still be able to objectively justify their approach. To do that, the objective justification must correspond to a real need on the part of the business, be an appropriate method of achieving that objective and be necessary in order to achieve it.
