Part-time workers form a significant portion of the workforce, offering flexibility and operational efficiency to businesses across various sectors. However, part-time workers can sometimes face discrimination in the workplace which can manifest in various forms, including less favourable treatment compared to their full-time counterparts, particularly in terms of pay, benefits and opportunities for advancement. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) were introduced to safeguard part-time workers from such discrimination, ensuring they receive the same treatment as comparable full-time workers, pro rata.

The recent decision in Augustine v. Data Cars Ltd highlights some of the complexities involved in interpreting and applying the PTWR. The Employment Appeal Tribunal (EAT) was tasked with determining whether a flat rate "circuit fee" imposed on both full-time and part-time drivers by a minicab firm constituted less favourable treatment of part-time workers and, if so, whether such treatment was solely on the grounds of the worker's part-time status.

Case facts

Mr W Augustine was a private hire driver employed by Data Cars Ltd (DC) working an average of 34.8 hours per week. DC required all drivers to pay a weekly circuit fee of £148 for access to the company's booking system, regardless of the number of hours worked. Mr Augustine challenged this flat rate fee policy under Regulation 5 of the PTWR, which aims to protect part-time workers from receiving less favourable treatment than full-time workers unless there is an objective justification for any discrepancy. He argued that, in practice, this fee disproportionately affected part-time workers, obliging them to pay a greater share of their earnings or a higher fee in relation to the hours worked in comparison to the full-time drivers.

The Employment Tribunal (ET) rejected the claim, as it found that both Mr Augustine and any full-time workers were subject to the same fee. Thus, there was no less favourable treatment as everyone was being treated equally. The ET noted that, regardless of part-time or full-time status, drivers were required to fulfil a certain quota of hours and jobs to offset the circuit fee. This quota varied depending on the nature of the work, but it was established that a minimum of 30 hours per week was necessary for drivers to make the work financially viable and to cover the cost of the circuit fee for the subsequent week. The ET applied the test set out by the Inner House in McMenemy v. Capita Business Services Ltd, concluding that even if the Claimant had demonstrated less favourable treatment, the imposition of the circuit fee did not occur solely because he was a part-time worker.

EAT decision

Challenging the ET's decision, Mr Augustine appealed to the EAT. On the crucial aspect of less favourable treatment, the EAT acknowledged that the ET had not fully considered the implications of the flat circuit fee on Mr Augustine. The EAT recognised that the fee, when evaluated as a proportion of earnings or hours worked, placed a disproportionately higher burden on Mr Augustine compared to full-time employees, and that this could constitute less favourable treatment under Regulation 5(3) of the PTWR.

Despite this initial disagreement with the ET's findings, the EAT ultimately concurred with the ET's conclusion on the grounds of causation. The EAT highlighted that, according to Regulation 5(2) of the PTWR, the less favourable treatment must be solely because the worker is part-time for the claim to succeed. Applying the precedent set by McMenemy v. Capita Business Services Ltd, the EAT upheld the "sole reason" test, determining that the correct legal standard had been applied by the ET. It agreed that Mr Augustine's part-time status was not the sole reason for the imposition of the circuit fee, leading to the dismissal of the claim.

In its detailed analysis, the EAT elaborated on the different methods of assessing the impact of the circuit fee. When considering the fee as a percentage of total earnings, the EAT noted that the pro rata principle would suggest that the fee represented a more substantial proportion of a part-time worker's earnings than that of a full-time worker, potentially indicating less favourable treatment. However, when examining the fee in relation to hours worked, the EAT pointed out that the PTWR did not explicitly limit the assessment to "pay or other benefit". This allowed a broader interpretation that could include a pro rata temporis approach, as supported by the EU Part-time Work Directive and the Court of Appeal's decision in British Airways plc v. Pinaud. The EAT observed that a like-for-like comparison of the treatment of full and part-time workers was often necessary, and the ET was permitted to make a comparative assessment by reference to the proportion of time if appropriate.

Therefore, while the EAT's reasoning incorporated a more thorough examination of the potential for less favourable treatment, it ultimately affirmed the ET's dismissal of the claim based on the stringent nature of the test for causation.

Comment

The decision in Augustine v. Data Cars Ltd provides a practical examination of the challenges involved in applying the PTWR. The case brings to the forefront the nuanced scrutiny required when assessing whether uniform policies may inadvertently lead to less favourable treatment of part-time staff. It highlights the need for a careful approach to policymaking and the importance of considering the proportionality of any charges or fees that apply across the workforce.

The EAT's adherence to the "sole reason" test for discrimination clarifies the strict requirements for proving a claim under the PTWR. The ruling reinforces the necessity for thorough evidence to support claims that less favourable treatment is due to part-time status. Overall, the decision offers a reminder about the careful balance required in employment practices and the legal considerations surrounding the treatment of part-time workers.