Warren Augustine v Data Cars Limited

The Court of Appeal considered the proper construction of regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the 2000 Regulations) and whether the Court of Session decision in McMenemy v Capita Business Services Ltd [2007] IRLR 400 should be followed. The central legal question was whether the statutory protection in regulation 5(2)(a) requires that less favourable treatment be "solely" because the worker is part‑time, or whether it is sufficient that part‑time status is an effective cause of the treatment.

The majority (Edis LJ and Bean LJ) concluded that McMenemy was wrong on construction — the 2000 Regulations should be read to protect part‑time workers where part‑time status is an effective and predominant cause of less favourable treatment — but both judges felt bound by authority to follow McMenemy and therefore dismissed the appeal. Laing LJ dissented on the construction point, upholding McMenemy as correctly applying the Directive and the Framework Agreement.

Key statutory materials were section 19 of the Employment Relations Act 1999, the text of regulation 5 and the Framework Agreement annexed to Directive 97/81/EC. The Court discussed authorities including Gibson, Sharma and Carl and explained why different courts had taken differing approaches to the causation test. Permission to seek leave to appeal to the Supreme Court was granted so that the issue can be authoritatively determined.

Background and procedural posture.

The appeal was from a decision of the Employment Appeal Tribunal of 15 July 2024 ([2024] EAT 117). The EAT had held that the claimant, Mr Augustine, had been treated less favourably than comparable full‑time workers but dismissed his complaint under regulation 5 of the 2000 Regulations because it found the less favourable treatment was not solely on the ground of part‑time status, even though part‑time status was an effective cause.

Nature of the claim and relief sought.

• The appellant sought to overturn the EAT's dismissal and to establish that regulation 5 applies where part‑time status is an effective cause of the less favourable treatment, even if not the only cause.

Issues framed by the court.

1. Whether McMenemy v Capita Business Services Ltd [2007] IRLR 400 was wrongly decided on the causation point.
2. If McMenemy was wrong, whether this Court should nevertheless follow it (having regard to precedent rules and cross‑jurisdictional considerations).

Reasoning and analysis.

The Court examined: (a) the statutory power under section 19 of the Employment Relations Act 1999 to make regulations protecting part‑time workers, (b) the wording of regulation 5, in particular the phrase "the treatment is on the ground that the worker is a part‑time worker", and (c) the Framework Agreement annexed to Directive 97/81/EC which uses the word "solely".

Edis LJ analysed the purpose and text of the 1999 Act and the Regulations and concluded that the domestic regulations did not incorporate the word "solely" and that the correct domestic test is that part‑time status must be an effective and predominant cause of the less favourable treatment. He found McMenemy wrong on this construction but, because of binding precedent considerations (Abbott v Philbin and the approach in Jwanczuk), followed McMenemy and dismissed the appeal; he granted permission to appeal to the Supreme Court.

Laing LJ took the opposite view on construction: she considered the Framework Agreement and the Directive, their context and text, and concluded that clause 4.1's phrase "solely" should be given its plain, narrow meaning and that the Regulations were intended to be construed consistently with that test. She therefore considered McMenemy correctly decided but agreed that the outcome would be dismissal of the appeal.

Bean LJ agreed with Edis LJ that McMenemy was wrongly decided but, in the absence of a Supreme Court decision, considered the Court should follow McMenemy for reasons of precedent and consistency across the jurisdictions of the Employment Tribunal and EAT.

Subsidiary findings and wider significance.

The Court reviewed domestic and EU cases (including Gibson, Sharma and Carl) and concluded the authorities have divided on whether the "on the ground that" test in the Regulations requires sole causation. The judgment emphasises the difference between the narrower protection in the Framework Agreement/Directive and the potential for domestic regulations under section 19 to provide broader protection. The Court noted the unsatisfactory state of the law nationwide and granted leave to appeal to the Supreme Court to resolve the conflict.

Appeal dismissed. Although two members of the Court considered McMenemy v Capita Business Services Ltd was wrongly decided and that regulation 5 of the 2000 Regulations should be read so that part‑time status need only be an effective and predominant cause of less favourable treatment, the Court felt bound by precedent to follow McMenemy. Laing LJ dissented on the construction point and would have treated McMenemy as correct. Permission to seek leave to appeal to the Supreme Court was granted to settle the conflicting authorities.

On appeal from the Employment Appeal Tribunal ([2024] EAT 117; EA-2022-00473-LA). The EAT had decided part‑time status was an effective cause of less favourable treatment but dismissed the regulation 5 claim because it found the treatment was not solely on that ground; the EAT also considered McMenemy v Capita Business Services Ltd [2007] IRLR 400.