In the case of Augustine v Data Cars Ltd, the Employment Appeal Tribunal (EAT) upheld the Tribunal’s decision that there was no breach of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, despite acknowledging that there was less favourable treatment. Mr. Augustine, a private hire driver working an average of 34.8 hours per week, was required to pay a flat weekly circuit fee of £148, the same as his full-time counterparts who worked over 90 hours per week. Mr. Augustine claimed that this flat fee constituted less favourable treatment under the Part-Time Workers Regulations.
Tribunal and EAT decisions
Tribunal decision
The Tribunal initially rejected Mr. Augustine's claim, stating that there was no less favourable treatment because both part-time and full-time drivers were charged the same fee. The Tribunal further held that even if there was less favourable treatment, it was not solely on the ground that Mr. Augustine was a part-time worker. This decision was based on the principle established in the Scottish Court of Session’s decision in McMenemy v Capita Business Services Ltd, which requires that less favourable treatment must be solely on the grounds of part-time status.
EAT Decision
The EAT allowed Mr. Augustine's appeal in part, finding that the Tribunal had erred in its approach to the question of less favourable treatment by not applying the pro-rata principle. The EAT determined that the flat rate fee resulted in Mr. Augustine paying a higher proportion of his earnings compared to his full-time comparator, thus resulting in less take-home pay or a lower hourly pay rate. However, the EAT ultimately upheld the Tribunal’s decision, agreeing that the less favourable treatment was not solely on the ground of Mr. Augustine’s part-time status, as required by the McMenemy decision.
Legal implications for employers
Sole ground requirement
This case clarifies that for a part-time worker to succeed in a claim under the Part-Time Workers Regulations, they must establish that any less favourable treatment is solely on the ground of their part-time status. Employers can defend such claims by demonstrating that other relevant factors were at play beyond the worker's part-time status. This is crucial for employers to understand, as it provides a clear pathway to defend against claims of less favourable treatment.
Pro-rata principle
The case also highlights the importance of applying the pro-rata principle when assessing whether part-time workers are treated less favourably. Employers must ensure that any fees, charges, or benefits are proportionate to the hours worked by part-time employees to avoid claims of less favourable treatment. This principle is essential for maintaining equitable treatment between part-time and full-time workers.
Additional Considerations
Objective justification
Employers should be aware that less favourable treatment can be justified if it is a necessary and appropriate way of achieving a legitimate objective. This means that if an employer can demonstrate that the treatment is aimed at achieving a legitimate business objective and is proportionate, they may be able to defend against claims of less favourable treatment.
Future legal developments
The EAT expressed dissatisfaction with the sole ground requirement established in McMenemy, suggesting a preference for a test where part-time status is the "effective and predominant cause" of the less favourable treatment. This indicates that future legal developments may shift towards a more flexible approach, potentially impacting how employers defend against such claims.
Practical steps for employers
Review policies: Regularly review and adjust policies to ensure they do not inadvertently disadvantage part-time workers.
Apply pro-rata principle: Ensure that any fees, charges, or benefits are proportionate to the hours worked by part-time employees.
Document decisions: Keep detailed records of the reasons behind any differential treatment to demonstrate that it is not solely based on part-time status.
By understanding and applying these principles, employers can better navigate the complexities of part-time worker regulations and avoid potential legal pitfalls.
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