The Supreme Court has decided in Augustine v Data Cars Limited that part-time status need only be an effective cause of unfavourable treatment. It does not need to be the sole cause.
Mr Augustine worked as a part-time private hire driver. His hours averaged 34.8 hours per week. His comparator who worked full-time averaged over 90 hours per week. Data Cars charged every driver the same fixed weekly fee for access to its booking system regardless of their hours. This meant that Mr Augustine paid significantly more per hour to drive than his comparator. He claimed that this was part-time worker discrimination.
This case puts an end to many years of dispute about this issue in the Employment Appeal Tribunals where different cases and different judges produced different outcomes. The Supreme Court has had the last word.
Regulation 5(1) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 means that a part-timer has the right not to be treated less favourably by his or her employer than the way they treat a full-timer and this is as regards the terms of the contract or being subjected to any other detriment by any act or deliberate failure to act by the employer.
Regulation 5(2) protects a part-time worker where treatment is on the ground that they are part-time and the treatment cannot be objectively justified. The burden is on the employer to show that the treatment can be justified.
The EU Framework behind the Regulations is more strictly worded and protects workers solely because they work part-time but the Government made a deliberate decision not to adopt that wording in the legislation here. This might well be the reason the legislation has caused a significant amount of litigation over the years producing different decisions and causing uncertainty. Thanks to the Supreme Court that uncertainty is now removed and the relevant question to ask now is was the part-time status an effective cause?
This opens the way for more part-time workers to get their cases off the ground. The onus will be on employers to be show they can defend their actions in a way that is objectively justifiable. We shall have to wait and see whether this has any real impact on the way part-time workers choose to protect their rights and whether there will be an increase in this type of claim.
