Under section 5 of the Part-time Workers (Less Favourable Treatment) Regulations 2000 (the Regulations), a part-time worker has the right to not be treated less favourably than a full-time worker because of their part-time status. An employer can defend claims regarding less favourable treatment of part-time workers if they can justify the treatment on objective grounds.
Augustine v Data Cars
The issue of part-time worker discrimination was considered in the case of Augustine v Data Cars. This case was brought by a part-time private hire driver employed by Data Cars. The worker was required to pay Data Cars a flat weekly circuit fee of £148, which all drivers were required to pay whether they were part-time or full-time.
The worker submitted a claim to the Employment Tribunal (ET) alleging that the flat weekly circuit fee amounted to part-time worker discrimination. This claim was dismissed by the ET, on the basis that part-time workers were not treated less favourably than full-time workers in this regard because full-time workers also had to pay the same fee. The Tribunal also concluded that, even if less favourable treatment could be established, the claim would still fail because the worker’s part-time status was not the sole reason for the treatment. Data Cars charged the fee regardless of whether a worker was part-time or full-time.
The worker appealed to the Employment Appeal Tribunal (EAT). The EAT found that the ET was mistaken in its finding that there was no less favourable treatment. The EAT held that the ET should have taken into consideration that part-time workers earn less than full-time workers in the same role, and therefore applying the same flat fee to full-time and part-time workers resulted in the take home pay of part-time workers being disproportionately reduced. Therefore, part-time workers were subjected to less favourable treatment in comparison to full-time workers in relation to the flat fee.
Nevertheless, the EAT agreed with the ET that the reason for the less favourable treatment was not solely because of the worker’s part-time status. Therefore, even though less favourable treatment was established, the claim failed because the treatment was not caused by the part-time status of the worker.
Conclusion
This case provides valuable insight into the correct approach for determining whether part-time workers have been treated less favourably. It is important to consider the proportionate effect on part-time workers in context of their reduced hours and pay, which may result in them being disproportionately affected when subjected to the same policy as is applied to full-time workers.
The case also clarifies the threshold for causation in part-time worker discrimination cases, the part-time status of the worker needs to be the sole reason for the less favourable treatment. This is a higher threshold than is required for direct discrimination claims under the Equality Act 2010. In those cases, the protected characteristic of the worker (for example their sex, race or disability) need only be a significant influence on the less favourable treatment, the protected characteristic is not required to be the sole reason.
The Equality Act also offers workers protection from indirect discrimination related to a protected characteristic. Briefly, indirect discrimination means that it can be unlawful for employers to enforce a policy in a workplace, if certain workers are disadvantaged by that policy as a result of their protected characteristic. Part-time workers do not enjoy this protection against policies which disproportionately impact them.
This blog was written by Yavnik Ganguly, Solicitor at didlaw.
