W Augustine v Data Cars Ltd

The Employment Appeal Tribunal allowed the claimant's appeal in part under regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR). The tribunal held that the Employment Tribunal erred in its assessment of less favourable treatment by failing to apply a pro rata temporis analysis: a flat circuit fee of £148 per week imposed a heavier burden on the part-time claimant when measured as a proportion of hours worked or of pay, contrary to regulation 5 (and regulation 1(2) defining the pro rata principle) read with the Part-Time Worker Directive 97/81.

The ET also erred in law by treating the respondent’s lack of intention to discriminate as determinative of causation. However, because of the binding effect, as a matter of pragmatic comity across Great Britain, of the Court of Session (Inner House) decision in McMenemy v Capita Business Services Ltd, the EAT concluded that the PTWR must be read as requiring that any less favourable treatment be on the "sole ground" that the worker is a part-time worker; on the facts the tribunal could not be certain the ET would have been bound to find sole causation and therefore did not remit the claim for rehearing but invited representations on disposal.

Background and parties: The claimant, a private-hire driver employed by the respondent, paid a flat weekly circuit fee of £148 for access to the respondent’s booking system. The claimant worked on average 34.8 hours per week; his comparator worked over 90 hours per week.

Nature of the claim and relief sought: The claimant brought a claim under regulation 5 PTWR that the flat circuit fee amounted to less favourable treatment of a part-time worker and sought a remedy under the PTWR (including potentially compensation under regulation 8).

Procedural history: The Employment Tribunal (London South) found the claimant to be a part-time worker but dismissed his claim, concluding either there was no less favourable treatment or any such treatment was not "on the ground that" he was part-time. The claimant appealed to the EAT; the appeal was permitted after an initial paper review and a rule 3(10) hearing.

Issues framed by the court:

• Whether the ET erred in law in its assessment of "less favourable treatment" by failing to apply a pro rata temporis analysis (ground 1).
• Whether the ET erred in law in its approach to causation under regulation 5(2)(a) PTWR, specifically whether less favourable treatment must be "on the sole ground" that the worker is part-time and whether the employer’s intention is relevant (ground 2).

Court’s reasoning: On ground 1 the EAT concluded that the ET had been wrong to treat identical formal treatment as dispositive; the correct comparison requires contextual, proportionate analysis. Applying pro rata temporis principles (and following British Airways plc v Pinaud), a flat fee of the same sum imposed on a part-time worker amounted to less favourable treatment when measured as a proportion of hours worked or of pay, because the part-time worker forgoes a larger proportion of earnings. The EAT accepted that calculating hourly pay might require taking account of other variables for compensation purposes under regulation 8(9), but that did not defeat the conclusion that less favourable treatment could be established by a pro rata assessment.

On ground 2 the EAT held that the ET was wrong to treat the respondent’s lack of intention to disadvantage part-time workers as determinative; intention or motive is not the relevant enquiry. Absent binding authority, the EAT would have adopted the approach in Sharma and Carl that part-time status must be the effective and predominant cause of treatment (not necessarily the only cause). Nevertheless, because of the need for coherence across Great Britain and the decision of the Court of Session in McMenemy, the EAT treated McMenemy as binding in practice and accepted that the PTWR should be read as requiring treatment to be "on the sole ground" that the worker is part-time. The EAT therefore allowed the appeal in part (upholding the error on less favourable treatment and the error in the ET’s focus on intention) but, having regard to McMenemy and the ET’s findings, concluded that it was not appropriate to remit the case for rehearing and invited representations on disposal.

Appeal allowed in part. The EAT held that the ET erred in law by failing to apply a pro rata temporis approach when assessing less favourable treatment under regulation 5 PTWR (the flat circuit fee imposed a higher proportional burden on the part-time claimant). The ET also erred in treating the employer's lack of intention to disadvantage part-time workers as determinative of causation. For reasons of Britain-wide consistency the EAT, however, regarded the Court of Session (Inner House) decision in McMenemy as binding practice and read regulation 5(2)(a) as requiring that the less favourable treatment be "on the sole ground" that the worker is part-time; on the ET’s findings the appeal did not result in an automatic upholding of the PTWR claim and the parties were invited to make representations on disposal.

This is an EAT appeal from a reserved judgment of the London South Employment Tribunal (Employment Judge Siddall) sent out on 31 January 2022. The EAT initially reviewed the case on paper and, after a rule 3(10) hearing, permitted the appeal to proceed. The appeal was heard by the EAT on 27 June 2024 and the judgment handed down 15 July 2024.