W Augustine v Data Cars Ltd

For a claim under regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, apparently identical terms may constitute less favourable treatment. The treatment must be assessed in its practical context. A flat weekly charge may disadvantage a part-time worker if it represents a greater proportion of hours worked or reduces hourly take-home pay more than for a full-time comparator.

The EAT held that a pro rata assessment may be required even where the statutory definition of the pro rata principle does not directly apply. Although the EAT considered that part-time status should ordinarily need only be an effective and predominant cause, it followed McMenemy for reasons of Britain-wide consistency. The less favourable treatment therefore had to be solely on the ground of part-time status. Employer motive or intention was irrelevant to that causation inquiry.

The claimant was an employee and private-hire driver. The respondent charged every driver a weekly circuit fee of £148 for access to its booking system, irrespective of hours worked. The claimant worked an average of 34.8 hours weekly, while his full-time comparator worked over 90 hours.

The London South Employment Tribunal held that the claimant was a part-time worker but dismissed his claim under regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It found no less favourable treatment because all drivers paid the same fee. Alternatively, it held that any treatment was not solely because he worked part-time.

The claimant appealed. The central issues were whether the fee had to be assessed proportionately and whether regulation 5(2)(a) required part-time status to be the sole cause of any less favourable treatment.

1. Appeal allowed in part. The ET erred in holding that identical payment of the circuit fee necessarily meant identical treatment. The claimant’s complaint concerned a flat charge which did not reflect his lower hours. It could be assessed either as a higher fee proportionate to hours worked, or as a greater deduction from earnings producing a lower hourly take-home rate.

2. Under regulation 5(3), read with the pro rata temporis principle in clause 4.2 of the Framework Agreement, a proportional comparison was required. The statutory definition in regulation 1(2) directly applied to the pay analysis. It did not preclude an hours-based proportional analysis where appropriate. British Airways plc v Pinaud supported that approach. The ET’s own findings showed that the fee was a greater proportion of the earnings of a driver working fewer hours.

3. The EAT’s preferred construction of regulation 5(2)(a) was that part-time status need be an effective and predominant cause, rather than the sole cause. That construction best reflected the text and protective purpose of the Regulations, which could provide protection beyond the minimum required by the Directive.

4. Nevertheless, the EAT followed the Inner House decision in McMenemy. Although not technically binding on an appeal from an English ET, it concerned a Great Britain-wide statutory regime and should ordinarily be followed for consistency. The applicable test was therefore whether the treatment was solely on the ground that the claimant was a part-time worker.

5. The ET also erred by asking whether the respondent intended to treat the claimant less favourably. The inquiry concerns the reason for the treatment, not the employer’s motive or intention. However, on the ET’s findings, the EAT could not say that the sole-ground requirement was necessarily met: the same flat fee affected drivers across a range of working hours, including some full-time drivers.

6. The EAT provisionally considered that remittal would be unnecessary because, if the sole-ground test governed, the claim could only fail. It permitted written representations on final disposal and consequential matters.

• Employment Appeal Tribunal: Allowed the claimant’s appeal on less favourable treatment and partly on causation: [2024] EAT 117.
• London South Employment Tribunal: Dismissed the regulation 5 claim in a reserved judgment sent on 31 January 2022.