Court of Appeal applies Scottish precedent on part-time worker discrimination

Background

Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time staff must not be treated less favourably than comparable full-time workers simply because they work part-time, unless the treatment can be objectively justified.

In the case of Augustine v Data Cars Ltd, a part-time private hire driver challenged his employer’s policy of charging all drivers the same weekly fee to access work via the company’s booking system. He argued that, while the fee was the same for everyone, it had a greater financial impact on him as a part-time worker and that this therefore amounted to less favourable treatment.

The employment tribunal rejected the claim, finding that part-time and full-time drivers were treated in the same way because they all paid the same fee. On appeal, it was accepted that the tribunal should have considered whether this equal treatment had a disproportionate impact on part-time workers. However, the appeal tribunal still found that the claim could not succeed because the fee was not charged because the driver was part-time. Under the current legal test, a part-time worker must show that their part-time status was the sole reason for the treatment in question.

Court of Appeal decision

The Court of Appeal agreed that the claim should not succeed. Although a flat-rate fee may have a greater financial impact on someone working fewer hours, the Court confirmed that this does not amount to unlawful treatment unless the worker's part-time status is the sole reason for the way they have been treated. In this case, the fee applied to all drivers in the same way, and the company’s approach was not based on whether someone worked part-time.

While the Court disagreed about whether this test sets the right standard, the judges agreed it should continue to apply across Great Britain to avoid inconsistent outcomes in different parts of the UK. The case may now be considered by the Supreme Court, which would have the opportunity to resolve the uncertainty.

What this means for employers

This decision confirms that a claim under the part-time worker regulations will not succeed unless part-time status is the only reason for the less favourable treatment. This creates a high threshold for claims and limits the ability of part-time workers to rely on arguments based on disproportionate impact alone.

From an HR perspective, employers should still be alert to the practical effects of apparently neutral policies. Just because a rule applies equally to everyone does not mean it is risk-free. While the legal bar may be high, employers should continue to consider whether policies or charges have a disproportionate effect on part-time staff and be ready to justify them if challenged.

For more information or advice, please contact Matt Verrier in our Employment team.