Warren Augustine v Data Cars Limited

The majority held that, under regulation 5(2)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time status must be an effective and predominant cause of less favourable treatment, but need not be the sole cause. The majority considered the contrary decision in McMenemy v Capita Business Services Limited wrong, but followed it to preserve consistency across the Employment Tribunal system pending Supreme Court resolution. The appeal was dismissed and permission to appeal to the Supreme Court was granted.

The appellant challenged the Employment Appeal Tribunal’s decision, reported at [2024] EAT 117. The EAT had found less favourable treatment but dismissed the regulation 5 claim because part-time status was an effective cause rather than the sole cause, while considering itself bound by McMenemy v Capita Business Services Limited.

The Court of Appeal considered whether McMenemy was wrongly decided in construing regulation 5(2)(a), and, if so, whether it should nevertheless be followed as a decision of the Inner House of the Court of Session on legislation applicable throughout Great Britain. The central issues were the causal requirement and the proper approach to cross-jurisdictional precedent.

1. Appeal dismissed. Although the majority considered McMenemy v Capita Business Services Limited to be wrongly decided, the court followed it and upheld the EAT’s dismissal of the claim.
2. By a majority, Edis LJ and Bean LJ held that regulation 5(2)(a) requires part-time status to be an effective and predominant cause of less favourable treatment. It need not be the sole cause. The decision-maker’s subjective intention or motive is irrelevant to the causation question.
3. The majority considered that section 19 of the Employment Relations Act 1999 permitted regulations giving protection beyond the minimum requirements of the Framework Agreement annexed to Directive 97/81/EC. The omission of “solely” from regulation 5(2)(a) should therefore be respected, rather than corrected by construction.
4. Laing LJ considered McMenemy correct. She held that “solely because” in clause 4.1 of the Framework Agreement imposed a narrow causal test and that the wording of regulation 5(2) did not clearly show an intention to relax it. She agreed in the result.
5. The court applied the principle in Abbott v Philbin [1960] Ch 27; [1961] AC 352, recently applied in Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156; [2024] KB 275, that a decision of the Inner House on legislation applicable throughout the jurisdiction should generally be followed absent compelling reasons. Permission to appeal to the Supreme Court was granted.

• Court of Appeal (Civil Division): appeal dismissed. The court followed [2007] IRLR 400 despite the majority’s view that it was wrongly decided, and granted permission to appeal to the Supreme Court.
• Employment Appeal Tribunal: less favourable treatment was established, but the regulation 5 claim was dismissed because part-time status was not the sole cause; the decision is reported at [2024] EAT 117.