In this case, the Court of Appeal upheld an EAT decision that a part-time driver's less favourable treatment did not breach the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) because his treatment was not solely on the ground that he worked part-time.
Background
The Court of Appeal is not bound by the doctrine of precedent to follow decisions of the Inner House of the Court of Session in Scotland or the Court of Appeal in Northern Ireland. However, where either of those courts has given a decision on the meaning of a statutory provision applicable throughout either Great Britain or the United Kingdom, it is highly desirable that the Court of Appeal should follow the previous decision and leave it to the Supreme Court to resolve any difficulties. Since 1959, this principle has been adhered to in the absence of "compelling reasons" not to follow it.
Facts
Mr Augustine was a private hire driver employed by Data Cars Ltd (DCL), working an average of 34.8 hours per week. All DCL's drivers had to pay a weekly ‘circuit fee’ of £148, irrespective of whether they worked full or part-time. This gave them access to DCL's booking system. Mr Augustine bought a tribunal claim that the flat rate circuit fee was contrary to the PTWR. He argued that he was paying a higher circuit fee than his full-time comparator (who worked on average 90 hours a week) when considered as a proportion of his hours worked and/or that he was taking home a lower hourly rate of pay once a pro rata reduction was allowed for the circuit fee. This meant he was being treated less favourably than a comparable full-time worker.
The tribunal rejected his claim. It found that there was no less favourable treatment because DCL had treated Mr Augustine and his full-time comparator in exactly the same way. The tribunal went on to hold that even if Mr Augustine could establish less favourable treatment, his claim could not succeed because any such treatment was not solely on the ground that he worked part-time. Mr Augustine appealed to the EAT, which found that the tribunal was right to reject the claim because Mr Augustine's part time status was not the sole reason for his treatment (for more detail see our earlier alert here).
In coming to this decision, the EAT felt, in the interests of consistency of approach in Great Britain, it should follow a decision of the Scottish Inner House of the Court of Session (McMenemy v Capita Business Services Ltd ). In that case, it was held that a claimant's part-time worker status needed to be the sole reason for the less favourable treatment. However, the EAT itself preferred the interpretation of earlier EAT cases which had held that a worker’s part-time status must be the effective and predominant, cause of the less favourable treatment, but not necessarily the only cause. Mr Augustine appealed to the Court of Appeal, arguing that McMenemy was not correct and the earlier EAT decisions were: his part-time status must be the effective and predominant cause of the less favourable treatment; it need not be the only cause.
The majority of the Court of Appeal judges considered, based on the wording of the PTWR, that McMenemy was wrongly decided. The judge in the minority felt that that the drafters of the PTWR knew that there could be more than one reason, or ground, for less favourable treatment but chose to refer to one ground and to state in the Regulations that the right not to be subjected to less favourable treatment applies ‘only if’ the treatment is ‘on the ground that the worker is a part-time worker’ (and is not objectively justified). Although they disagreed on the test, the judges agreed that McMenemy should be followed despite its defects. Only a decision of the Supreme Court (or an amendment to the PTWR) could resolve the problem.
What does this mean for employers?
Unless this case goes to the Supreme Court or the PTWR are amended, where employers can show there are other relevant causes of any less favourable treatment besides a worker's part-time status, a claim of less favourable treatment under the PTWR is likely to fail. This narrower test presents a higher hurdle for claimants than the test of whether the worker's part-time status was the effective and predominant cause of the less favourable treatment. This may not be the end of the story and we will keep clients updated if this case is heard by the Supreme Court.
