The Part Time Worker Regulations (PTWR) provide that part-time workers must not be treated less favourably than comparable full-time workers. The PTWR protect part-time staff against detriment and dismissal on the grounds of their part-time status.
In the case of Augustine v Data Cars Ltd, the claimant was a part-time private-hire driver who worked an average of 35 hours per week for the respondent. The claimant was required to pay a weekly circuit fee of £148 to access the respondent's database. This was the same fee that all drivers were required to pay, regardless of how many hours they worked, including a full-time driver who worked over 90 hours. The claimant brought an employment tribunal claim, arguing that he was being treated less favourably as a part-time worker.
The Tribunal rejected the claim. It found that there was no less favourable treatment since the fee did not take into account the hours worked, meaning both part-time and full-time drivers paid the same circuit fee. They were therefore in the eyes of the Tribunal, treated the same.
The claimant appealed to the EAT.
The EAT overturned the first of the Tribunal's findings. The Tribunal was not correct to say that equal treatment could not be less favourable. The EAT ruled that equal treatment could still be less favourable if it disproportionately affects part-time workers. Under the pro-rata principle, the Claimant was treated less favourably because the circuit fee represented a greater proportion of his earnings than those who worked full-time. In the alternative, assessing the amount of the circuit fee as a proportion of hours worked demonstrated that the claimant was paying a proportionally higher fee than full-time drivers.
However, the main issue for the EAT to determine when making its decision was whether the Claimant's part-time status was the reason for any disadvantage that he faced. The EAT considered the different legal tests the courts have applied in the past. On the one hand, courts in England had favoured an "effective and predominant cause" test. On the other, a higher Scottish court had held that a worker's part-time status must be the 'sole reason' for any less favourable treatment. Whilst the EAT expressed reservations about the 'sole reason' test, it felt bound to follow it.
As the claimant's part-time status was not the sole reason for the treatment (the other reason being the failure to apply a fee that took into account hours worked), the EAT found there had been no breach of the Part-time Workers Regulations.
On the basis of the law as it stands, it seems that a worker must be able to show that their part-time status was the sole cause of any less favourable treatment for their claim to succeed. This makes bringing claims for less favourable treatment under the PTWR potentially more difficult than it has been in the past.
However, given the conflicting case law, there remains some uncertainty in this area. Given the EAT's reservations about the Scottish case law it felt bound to follow, it is possible the claimant could seek to appeal to the Court of Appeal. We will continue to report on any developments in the case.