UK – Part-Time Worker Discrimination.
Does part-time status have to be the ‘sole cause’ or merely an ‘effective and predominant cause’ of any less favourable treatment?
Part-time workers have the right not to be treated less favourably due to their part-time status and to be offered (on a pro rata basis) the same terms as comparable full-time workers. There is conflicting case law on whether part-time status need be the sole reason for any less favourable treatment and the EAT has recently grappled with the difficult question of whether a worker’s part-time status has to be the ‘sole cause’ or merely an ‘effective and predominant cause’ of any less favourable treatment.
The employee, A, worked part-time as a private hire driver for a taxi firm. A claimed part-time worker discrimination, arguing he was treated less favourably because he was charged a circuit fee of £148 per week for access to the taxi firm’s database and the same flat-fee amount was charged to full-time drivers.
The employment tribunal rejected A’s claim that the imposition of the flat-rate fee meant he had been treated less favourably than a full-time comparator. In the alternative, taking account of the Scottish Court of Session’s decision in McMenemy -v- Capita Business Services Ltd [2007] IRLR 400, the tribunal held that A’s claim should fail in any event because he was not charged the flat-rate circuit fee solely because he was a part-time worker. The EAT allowed A’s appeal in part.
The EAT held that the tribunal had erred in its approach to the question of less favourable treatment. The tribunal had failed to consider the fact that treating someone the same as a comparator can sometimes amount to less favourable treatment. Applying the pro rata principle, A was either paying a greater proportion of his earnings in fees than his full-time comparator, or he was receiving a lower hourly rate of pay after the deduction of fees.
The fact that the employer had not intended to treat A less favourably was irrelevant, but the tribunal could not be criticized for applying the test for causation set out by the CSIH in McMenemy (which required part-time working had to be the sole reason for the less favourable treatment). The EAT strongly disagreed with the McMenemy decision, explaining at length why it preferred a test which simply required part-time status to be an ‘effective and predominant’ cause of any less favourable treatment. However, the EAT felt bound to follow the McMenemy decision on public policy grounds. We must therefore await further appellate authority on this point from the Court of Appeal or preferably the Supreme Court. Meanwhile, A’s case has been sent back to the tribunal for reconsideration.
Augustine -v- Data Cars Ltd [2024] EAT 117
For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
