Under regulation 5(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time workers are protected when unfair treatment towards them is on the ground that they are part-time and is not objectively justified.
The question, though, in the Supreme Court ruling in Augustine v Data Cars Limited, is whether it is sufficient for the unfair treatment to be simply because the person is part-time, and whether being part-time must be the only reason for the unfair treatment.
These are two different legal concepts: when unfair treatment applies and then the legal test for its causation.
What was the case about?
Warren Augustine was a private hire driver for Data Cars Ltd. He worked part-time, around 35 hours a week, whereas typical full-time drivers worked, on average, over 90 hours.
The company had a policy which meant they charged all drivers a fixed weekly ‘circuit fee’ of £148 to use their booking system, regardless of how many hours they worked.
Mr Augustine argued this was unfair because he worked fewer hours, and therefore, the fixed fee took a much larger proportion of his hourly earnings when compared to a full-time driver. He claimed this was ‘less favourable treatment’ under regulation 5(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, based on his status as a part-time worker.
What did the Supreme Court rule?
The Supreme Court ruled in favour of Mr Augustine, overturning previous decisions that had favoured the employer.
The Court had to consider the single phrase ‘on the ground that’ from regulation 5(2), which states that the right applies only if the treatment is on the ground that the worker is a part-time worker and the treatment is not justified on objective grounds.
Previously, it had been held that for a claim to succeed, working part-time had to be the sole reason for the treatment. Data Cars Ltd argued that the fee was for business reasons, specifically, charged to generate revenue, and not only because Mr Augustine was part-time.
The Supreme Court disagreed.
The Court found that part-time status only needs to be an effective or substantial cause of the disadvantage, rather than the only cause. It also considered the deliberate omission of the word ‘solely’ from the Part-Time Workers Regulations when the European Directive was introduced, noting that this was intended to ensure workers had better protection than the bare minimum required by EU law.
The practical impact was also important. Charging a flat fee to everyone can inherently treat those who work fewer hours less favourably because the cost represents a greater proportion of their earnings.
What does this mean for employers?
Under the Part-Time Workers Regulations 2000, being part-time doesn’t have to be the only reason someone is treated unfairly. A worker can claim less favourable treatment as long as their part-time status was a main reason or had a significant influence on the decision.
Employers should therefore review policies and practices that could have a greater impact on part-time workers. This could include flat-rate costs, such as equipment fees, or fixed requirements, such as a minimum number of training hours, which may affect part-time workers more heavily on an hourly basis.
It is also important to remember that having another reason for a policy does not automatically provide a defence. Arguing that a policy was created for ‘business reasons, such as to generate revenue’ or because it is ‘standard industry practice’ will not necessarily avoid a claim if the policy still disadvantages part-time workers.
Where a policy does treat part-time workers less favourably, employers should be able to objectively justify it. This means demonstrating that the policy is a ‘proportionate means of achieving a legitimate aim’. For example, there may be a valid technical reason why a particular cost cannot be split pro-rata.
The ‘pro-rata principle’ should generally be the default approach. If an employer is not applying it to pay or benefits, there should be a strong and documented reason why doing so would be inappropriate.
What should employers do now?
The Augustine v Data Cars Limited ruling is a useful reminder that treating everyone in exactly the same way does not necessarily mean that everyone is being treated fairly.
Employers should consider whether existing policies, costs, benefits and requirements have a greater impact on part-time workers. Where differences in treatment exist, they should be able to explain why they are necessary, proportionate and objectively justified.
A further point of interest is that, whilst the Supreme Court held that the existence of other causes of the treatment may be relevant to the justification of indirect discrimination or compensation, it does not prevent the right arising in the first place under the Act (No. 1551, reg 5(1)).
For organisations employing a mix of full-time and part-time workers, now is a good opportunity to review existing arrangements and ensure that the pro-rata principle is being applied appropriately.
