Warren Augustine, a part-time private-hire driver, paid the same fixed weekly fee for access to his employer’s booking system as drivers who worked many more hours. The Supreme Court held that, under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, he did not have to prove that part-time status was the only reason for that treatment. It was enough that part-time working was an effective cause, and the Court allowed his appeal.
A flat fee and fewer hours
In 2016 Warren Augustine worked as an employee driver for Data Cars Ltd. He averaged 34.8 hours a week. Other drivers averaged more than 43 hours, and some worked 60 hours or more. His chosen comparator averaged more than 90 hours. The employment tribunal found that Mr Augustine was a part-time worker and did not regard that comparator as inappropriate.
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Every driver paid a fixed circuit fee of £148 a week to use the company’s booking system, regardless of hours worked. A driver working fewer hours therefore paid more per hour and took home a smaller proportion of earnings than a comparable full-time driver. Mr Augustine said this was less favourable treatment under regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Why the claim failed below
Regulation 5 gives a part-time worker the right not to be treated less favourably than a comparable full-time worker in contractual terms or by any other detriment. The right applies only if the treatment is on the ground that the worker is part-time and is not justified on objective grounds. The protection covers direct discrimination, but, unusually, objective justification is a defence. Unless inappropriate, the pro rata principle is used to decide whether treatment is less favourable.
The employment tribunal’s primary finding was that charging every driver the same fee was not less favourable treatment. The Employment Appeal Tribunal overturned that finding, and Data Cars did not challenge the decision on that point. The tribunal also found that the business charged the fee to earn revenue. It also accepted that the company might then have lacked software for a commission-based arrangement. Applying McMenemy v Capita Business Services Ltd, it held that the claim failed in any event because part-time status was not the sole ground for the treatment.
The Employment Appeal Tribunal accepted that the flat fee was less favourable treatment and that part-time status was at least part of the reason. It also observed that a driver working more than 43.17 hours, whom it treated as a hypothetical full-time driver, but fewer hours than the comparator, would still be disadvantaged by comparison with him. It could not treat part-time status as the sole ground. Although it considered that an effective cause should be enough, and regarded McMenemy as wrong, it held itself bound by that decision and dismissed the appeal.
In the Court of Appeal, Edis and Bean LJJ agreed that the usual approach to causation should apply and that McMenemy was wrong, but dismissed the appeal because they believed they had to follow the Inner House. Elisabeth Laing LJ considered McMenemy correct. She read the singular reference to the ground, and the words only if, as imposing the same narrow test as clause 4.1 of the Framework Agreement on part-time work, which prohibits less favourable treatment solely because a worker works part time unless it is objectively justified. Permission to appeal was given so the causation issue could be resolved on a UK-wide basis.
Why an effective cause was enough
Lady Simler, with whom Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Richards agreed, held that the higher hourly cost showed at least some less favourable treatment on the ground of part-time status. Compared with someone working 43.17 hours a week, Mr Augustine’s disadvantage came from working fewer hours. The comparator’s hours above that level might matter if compensation had to be assessed on a just and equitable basis, but they did not prevent that treatment from being on the ground of part-time work.
Data Cars said that a fixed fee was how businesses of this kind generated revenue and that its software might not have permitted another arrangement. Lady Simler regarded those matters as possible objective justifications, not as separate grounds. The tribunal had not found that software limitations were the reason for the flat fee, and the company had made clear that it was not seeking to justify the treatment if it was prohibited. She nevertheless proceeded, as the courts below had done, on the basis that part-time status was not the sole ground.
By the time the Regulations were made, on the ground that already had a settled meaning in discrimination law. The protected characteristic did not have to be the only or even the main reason. It was enough that it was an effective cause or had a significant influence. Decisions of the Court of Justice had repeated the Framework Agreement’s sole-ground wording, but none had decided what it required where more than one cause was alleged. Lady Simler therefore left the meaning of solely because in clause 4.1 undecided.
That uncertainty did not require the domestic Regulations to be narrowed. Member states could give more favourable protection than the Directive, and section 19 of the Employment Relations Act 1999 conferred a broad power to secure that part-time workers were treated no less favourably, to such extent as the regulations specified. The Secretary of State used the established words on the ground that rather than copying solely because. There was no need for a conforming interpretation, and the assumption in McMenemy that the Regulations did no more than implement the Directive was wrong. Nor did only if or the singular ground demand a single cause: only if requires both the causal condition and the absence of objective justification, while ground identifies the protected status of part-time work.
Other causes may still matter to objective justification or to compensation. Their presence does not defeat the claim at the earlier stage of establishing why the worker was treated less favourably.
Verdict: The Supreme Court unanimously allowed Mr Augustine’s appeal. Lady Simler left open the interpretation of “solely because” in the European Framework Agreement. The judgment did not assess compensation.
