At a Glance
In Augustine v Data Cars Limited, the Supreme Court has provided a significant clarification of the test for less favourable treatment under the part-time worker regulations, confirming that a worker need only show their part-time status was an effective cause of the treatment, not the sole cause.
The case is of particular note for companies with flexible working arrangements, and highlights some of the risks associated with applying blanket policies equally to part-time and full-time workers.
Legislative Background
Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (‘2000 Regulations’) gives a part-time worker the right not to be treated less favourably than a comparable full-time worker. However, this right 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.”
The Supreme Court’s judgment grappled with the question of what the legislation means by “on the ground” in part (a), in particular whether it requires that:
- The individual’s part-time status must be the sole cause of their less favourable treatment, or
- The individual’s part-time status must be the effective cause of their less favourable treatment
The Facts
The Claimant was a taxi driver (Mr. Augustine) who worked for Data Cars Limited (the Respondent). He worked fewer hours per week than full-time drivers but was charged the same flat fee of £148 to access the Respondent’s booking platform to reach potential customers. Mr. Augustine claimed that the application of the fixed fee was less favourable treatment of him as a part-time driver because it meant that he paid a higher fee per hour worked than a full-time driver and took home lower hourly pay as a result.
The Employment Tribunal dismissed the Claimant’s claim for discrimination as a result of his part-time worker status. It held that the reason the company charged a fee to the booking system was that it was necessary to enable the Respondent to earn revenue (not because he worked fewer hours than some of his colleagues). Even if there was less favourable treatment, it held the claim should fail because treatment was not on the sole ground of his part-time status.
On appeal through the Employment Appeal Tribunal and Court of Appeal, both courts found in the Respondent’s favour on the basis that they understood they were bound by previous case law in Scotland which had held that Regulation 5 of the 2000 Regulations only applies where the sole ground for the less favourable treatment was that the worker was part-time. They agreed with the Employment Tribunal’s finding that Mr Augustine’s part-time status was not the sole ground for the treatment complained of and so his appeal failed.
However, the matter was granted permission to appeal to the Supreme Court for consideration of what the causation test required.
The Decision
The Supreme Court held that the same standard should be used as that set out in cases of discrimination under the Equality Act 2010, i.e. that if their part-time status was the effective cause of the treatment, that would meet the test. Their part-time status need not be the sole cause of the treatment for the worker to have the protection under the legislation. They considered that this interpretation was consistent with the language of the 2000 Regulations and their protective purpose. To hold otherwise, they said, would risk uncertainty and unreasonable outcomes given the standard approach applied in other discrimination cases.
Impacts for Employers
This decision may make it more difficult for employers to rely on there being additional, non-part time related causes for less favourable treatment to defeat a claim. In this sense, there is a lower threshold for claims and liability may arise in a wider range of circumstances where there are mixed motives for particular treatment.
It is worth noting, however, that other reasons for particular treatment outside an individual’s part-time status may still be relevant to the second question of whether the employer’s treatment is justified on objective grounds, and to the value of compensation awarded.
Practically, employers should be considering the following when managing arrangements that may impact part-time workers:
- Exercise caution when making decisions that may disadvantage part-time workers: For example, decisions relating to bonuses, overtime opportunities, training, promotion, shift allocation and flexible working arrangements. Even where there are multiple reasons for a decision, a claim may arise if a part-time worker considers they were treated less favourably and their part-time status was a material factor.
- Improve decision-making records: Managers should document the rationale behind decisions affecting employees and be able to demonstrate that any differential treatment is based on legitimate business reasons, rather than working patterns. Business rationales relating to operational, financial or technical reasons will be relevant to the question of objective justification and so contemporaneous evidence of decision-making will be key.
- Review workplace benefits and policies to ensure they are pro-rated where appropriate: Employers should be cautious about providing benefits, bonuses, and other contractual entitlements on a flat basis for employees, where such rules bite harder on part-time workers. Where a benefit can reasonably be provided on a pro-rated basis, this should be considered to mitigate the risk of claims.
