In the recent case of Augustine v Data Cars Ltd, the Employment Appeal Tribunal (EAT) has upheld the Tribunal’s decision that there was no breach of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, despite agreeing that there was less favourable treatment.
Background
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 sets out requirements for part-time workers not to be treated less favourably due to their part-time status than a comparator working full-time. Less favourable treatment may, however, be justified by an employer where it is a necessary and appropriate way of achieving a legitimate objective.
At present, the leading case law on whether treatment can be considered less favourable flows from the Scottish Court of Session’s decision in McMenemy v Capita Business Services Ltd (McMenemy), in which the Court held that less favourable treatment must be solely on the grounds of a worker’s part-time status.
Facts
In this recent case, the Claimant was a private-hire driver working an average of 34.8 hours a week. As part of his employment the Claimant was required by his employer to pay a circuit fee per week to access the employer’s database. The Claimant’s comparator, who worked over 90 hours on a full-time basis, was required to pay the same circuit fee per week as the Claimant. As a result, the circuit fee amounted to a higher proportion of the Claimant’s earnings in relation to his comparator who earned significantly more whilst paying the same flat-rate fee. On this basis, the Claimant brought a claim against his employer on the grounds of discrimination for being treated less favourably.
Tribunal Decision
In the first instance, the Tribunal held that the fact there was a flat-rate fee meant the Claimant was not being treated less favourably at all. Further, and considering the principle from McMenemy, the Claimant was not being charged a circuit fee for the sole reason of being a part-time worker, but rather to grant him access to a database in the same way as other drivers. The claim was therefore rejected and the Claimant appealed to the EAT.
EAT Decision
The Claimant’s appeal was allowed in part.
In ensuring a like-for-like comparison, the EAT looked at the circumstances of the Claimant and a comparator to determine whether it was the same save for the fact that they worked part-time and full-time.
The EAT applied the pro rata principle to consider whether the circuit fee amounted to less favourable treatment. It determined that as the Claimant was required to pay a flat rate circuit fee, he would forgo a higher proportion of his earnings than his full-time comparator, thus resulting in less take home pay or a lower hourly pay rate. The Tribunal had not considered that the fact a part-time and full-time worker were treated the same could still amount to less favourable treatment and the EAT overturned the Tribunal’s findings on this point.
However, the Claimant’s appeal ultimately failed as, following McMenemy, the EAT found the less favourable treatment was not solely on the ground that the Claimant was a part-time worker.
In reaching its decision the EAT expressed dissatisfaction with the sole principle in McMenemy, explaining that it preferred a test of whether part-time status was the ‘effective and predominant cause’ of the less favourable treatment. While not legally bound to follow the Court of Session’s decision, on account of it being Scottish rather than English law, the EAT nevertheless concluded that it was most appropriate to do so because there was a public interest in maintaining a consistent approach throughout the country.
Commentary
This case is of particular interest because of the EAT’s criticism of the decision in McMenemy. It will be interesting to see whether the requirement for less favourable treatment to be solely attributable to a worker’s part-time status will in future be appealed to the Court of Appeal.
In the meantime, this case assists employers by confirming that in order to be successful in a claim, a part-time worker must establish that any less favourable treatment is solely on the ground they are a part-time worker. Where employers can demonstrate other relevant factors were at play beyond a worker’s part-time status, they will be in a good position to defend any such claims.
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