Part-Time Workers: Supreme Court Clarifies Protection Against Less Favourable Treatment.

According to regulation 5(2) of the 2000 regulations, the right not to be treated less favourably than a comparable full time worker applies only:

1. ‘if the treatment is on the ground that the worker is a part-time worker’

And

1. ‘if the treatment is not justified on objective ground’

These regulations, however, left an important question around the right to claim unlawful discrimination unanswered: Does regulation 5 apply if a worker’s part-time status is an effective cause, but not the sole cause, of their less favourable treatment? This question was especially relevant because the comparable European Union legislation explicitly states that part-time workers should not be treated in a less favourable manner ‘solely because they work part time’.

This issue was recently considered by the Supreme Court in the case of Augustine v Data Cars Limited.

The Claim

Mr Augustine was a private hire driver who worked for a small business called Data Cars Limited in 2016. He was employed on a part-time basis, working an average of 34.8 hours a week. His chosen comparator at the company, by contrast, worked over 90 hours a week.

The basis for Mr Augustine’s claim was that Data Cars required all its drivers to pay a weekly fee to use its booking system. As all drivers were required to pay an equal sum, this had the effect that Mr Augustine paid a higher fee per hour to drive than a comparable full-time driver. He argued that this constituted a breach of Regulation 5 of the Part-Time Workers Regulations.

As all drivers were charged an equal fee, the cause for Mr Augustine’s less favourable treatment was initially not deemed to be solely because of his status as a part-time worker. His case was therefore dismissed by the Employment Tribunal, the Employment Appeal Tribunal, and the Court of Appeal before finally reaching the Supreme Court.

It was up to the Supreme Court to decide whether it was instead sufficient for Mr Augustine’s part-time status to have been an effective cause of unfavourable treatment to claim discrimination, rather than the sole cause.

The Decision

The Supreme Court found that part-time status does not need to be the sole cause of less favourable treatment, and it need only be an effective cause.

It cited previous interpretations of the phrase ‘on the ground that’ in anti-discrimination legislation that suggested if prohibited ground had a significant influence on unfavourable treatment, direct discrimination could be proved. The prohibited ground did not have to be the only reason for differential treatment.

It also argued that while the relevant European Union legislation used the words ‘solely because’, this did not prevent the UK from providing protection that goes beyond the minimum standards to part-time workers. It interpreted the decision not to adopt the ‘solely because’ language in the UK’s 2000 Regulations as deliberate, providing scope for employees to claim discrimination when their part-time status was only an effective cause of unfavourable treatment.

In Mr Augustine’s case, the Supreme Court argued that his part-time status was clearly a significant reason for his less favourable treatment when employed by Data Cars, even if it could not be proved that this was the only reason.

What Does This Mean for Employers?

Employers need to be aware that part-time workers no longer have to prove that their part-time status was the exclusive reason for a disadvantage. Showing it was a contributing or effective cause is enough. As a result, uniform policies applied to all workers that may impact those on part-time hours harder relative to their lower earnings can now risk legal challenges.

It may therefore be necessary to implement pro-rata policies that do not indirectly penalise staff working fewer hours. Where uniformly-applied policies exist and may create disparities for part-time workers, employers should be prepared to review these policies or to provide strong, objective business justifications for them.

We have specialist, expert employment lawyers at Acuity Law. We can assist you with any concerns or queries you may have in respect of the status of your part-time staff.