Part-Time worker discrimination: must status be the sole cause of less favourable treatment?

Whether a worker's part-time status must be the sole cause of their less favourable treatment has been widely debated in the courts when faced with part-time worker discrimination claims. The Court of Appeal recently considered it in Augustine v Data Cars Ltd. Mr Augustine, a part-time driver, paid a weekly ‘circuit' fee (£148 a week for every driver) to access the booking system. He argued the fee was a larger proportion of his earnings compared to a full-time driver and therefore less favourable treatment due to his part-time status. 

The law

Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “regulations”) gives part-time workers the right not to be treated less favourably than full-time workers in terms of their contract or any other detriment caused by their employer's actions or inactions. 

The right applies ‘only if the treatment is on the ground that the worker is a part-time worker’ and the treatment cannot be objectively justified. 

That's not to say that there cannot be differences between a part-time and full-time worker. For example, a part-time worker's pay and other benefits can be pro-rated so that it's adjusted proportionally based on their weekly hours compared to a full-time worker. 

The regulations implemented the Part-time Worker Directive 97/81 which stems from the ‘Framework Agreement on part-time work’. Clause 4 (1) of the Framework Agreement states:

“In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.”

The Framework Agreement includes the words “solely”, but the Regulations do not. 

Why does this matter? 

If the Regulations are interpreted according to the Framework Agreement, part time workers have to show their part-time status was the sole reason for the unfavourable treatment. Just showing it was a major cause wouldn't be enough. 

But, if the regulations are interpreted without reading that into it, then it has wider scope because the reason for the less favourable treatment by the employer would not have to be only because of the worker's part-time status. 

A look back…

Various cases over the years have explored this issue, resulting in differing opinions. 

In Scotland, the case of Gibson v Scottish Ambulance Service, held that a worker's part-time status must be the sole reason for the less favourable treatment. The Inner House of the Court of Session (Scotland's appeal court) in McMenemy v Capita Business Services Ltd agreed. 

However, the EAT in England and Wales thought differently. In Sharma and others v Manchester City Council the EAT concluded that being part-time had to be just one of the reasons. And in Carl v University of Sheffield, the EAT said that “part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause.”

The EAT in Augustine v Data Cars Ltd agreed that part-time status didn't have to be the sole cause of the less favourable treatment, it was sufficient for it to be a significant factor in the less favourable treatment. It said that Mr Augustine had been treated less favourably than comparable full-time drivers. But, it said his status as a part-time workers wasn't the sole reason for this disparity and it elected to follow the Inner House of the Court of Session's decision in McMenemy - even though it wasn't bound by it. Part of its rationale was to ensure that the same test applied in England and Wales as it did in Scotland.

Mr Augustine appealed to the Court of Appeal.

Which way did the Court of Appeal go? 

Lord Justice Edis explained that where parliament introduces regulations which could have included the phrase “solely because they work part time”, but did not, the court would not rewrite the regulations to include it. While a court might read a word or phrase into a statutory provision for some good reason, it wasn't clear that there was a reason to do this here. Therefore, it must have been a deliberate decision to omit it. 

On that basis the Court of Appeal, by majority, thought that the decision of the Inner House in McMenemy was wrong. However, it still dismissed the appeal. This was because it concluded that the tribunal “operates in Scotland as well as England and Wales, and it is very important that the rules of precedent are applied in a way which avoids inconsistent decisions being reached in different jurisdictions.” 

So that there is consistency across jurisdictions, the Court of Appeal therefore decided that the part-time status of the worker must be the sole cause of the less favourable treatment. As it wasn't in this case, it dismissed Mr Augustine's appeal.

What does this mean for employers?

For a part-time worker to be successful in their discrimination claim, the tribunal has to currently determine that their part-time status was the sole cause of that less favourable treatment. 

But this may not stay the legal test for long. 

The Court of Appeal stated that they would grant leave for the Augustine case to be appealed to the Supreme Court to reach a definitive resolution on the issue. The Supreme Court is the highest court in Scotland, England, and Wales, so after that there is no further right of appeal. 

If it is heard by the Supreme Court and if it overturns the decision so that part-time status need not be the only cause of the less favourable treatment, it will be a much wider test and could lead to more successful discrimination claims.

Whichever test applies, employers should take care when making decisions and check employment contracts, policies and procedures to ensure that part-time workers are not treated less favourably, either directly or indirectly, when compared to full-time workers. That is, unless the pro-rata principle applies or where the difference in treatment can be objectively justified. 

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