UK: Discrimination: Part-time Workers

Authors: Stephen Miller and Corinna Harris

The Court of Appeal considered whether part-time worker discrimination is limited to cases where less favourable treatment is solely on the ground of part-time status.

Mr. Augustine, a private hire driver, worked part-time for Data Cars Ltd which charged a flat weekly circuit fee for drivers to access its bookings system. He brought a claim alleging that this fee disproportionately affected part-time drivers compared with full-time drivers and amounted to less favourable treatment under the Part-Time Workers Regulations.

The issue to be considered in this case was whether part-time worker status had to be the “sole” cause, or, alternatively and less restrictively, an “effective and predominant” cause of the less favourable treatment.

The Court of Appeal dismissed Mr. Augustine’s appeal, applying the test set out by the Court of Session in McMenemy v Capita Business Services, that part-time status must be the sole reason for less favourable treatment. Notably, the majority of the Court found that that decision was wrongly decided, but nevertheless followed it to maintain consistency in the interpretation of the Regulations.

The majority of the Court of Appeal considered that the correct test is whether part-time worker status was an effective and predominant cause of the less favourable treatment.

Key Action Points for Human Resources and In-house Counsel

Legal uncertainty as to which is the correct test to apply will remain until this difference in approach is resolved by a Supreme Court decision. In light of this uncertainty, employers should be cautious about relying on the sole reason test.