In Augustine v Data Cars Ltd [2025] EWCA Civ 658 (20 May 2025) the Court of Appeal has followed the Scottish Court of Session decision in McMenemy v Capita Business Services holding that the test for determining whether discrimination has taken place against a part-time work must be if the part-time status is the sole reason.
Many judges and legal commentators believe that this is the wrong test and that a lower hurdle of an effective cause is more likely correct. Why then did the Court of Appeal reach this decision?
The doctrine of binding precedent which is a cornerstone of the English legal system means that any court below the Supreme Court is obliged to follow the higher court decisions even if that higher decision was incorrect. The idea is that if there is an anomaly the Supreme Court, as the highest court in the land, is the only court capable of unravelling this. Many judges believe that McMenemy was wrongly decided by the Scottish Court of Session and will also think that Augustine has been wrongly decided. The judges in the Court of Appeal felt they had no option but to follow McMenemy even though technically they are not obliged because it was a Scottish decision but they felt it would be highly undesirable to add
any further uncertainty. So now we have to wait for the Supreme Court to decide the point or for an amendment to be made to the Regulations.
Lord Justice Bean observed that this decision will leave the law relating to part-time workers in an unsatisfactory state and we tend to agree. Tribunals north and south of the border will be obliged to continue following McMenemy despite its obvious defects. If Mr Augustine wishes to pursue an appeal to the Supreme Court the Court of Appeal held that leave should be granted for him to do so.
We’ll keep you posted on further developments.
