Kate Wyatt examines the Court of Appeal’s reasoning in Augustine v Data Cars Limited, exploring how the judgment clarifies the threshold for proving less favourable treatment under the Part-time Workers Regulations.
Does the imposition of a flat rate fee which applies to full and part time workers equally, breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000?
No, found the Court of Appeal (CoA), because current judicial authority means part time status must be the sole reason for the less favourable treatment where here, it was not.
Background
In the case of Augustine v Data Cars Limited, the claimant, Warren Augustine, was a part-time private hire driver employed by Data Cars Limited (DC Ltd). Mr Augustine worked an average of 34.8 hours per week and was required to pay a flat weekly circuit fee of £148, which was the same fee payable by all drivers, regardless of the number of hours they worked.
Augustine alleged that this flat-fee arrangement constituted part-time worker discrimination.
Law
The legal framework for this case is based on the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), which implement the European Union's Part-Time Work Directive 97/81.
These regulations require that part-time workers are not treated less favourably than comparable full-time workers unless such treatment can be objectively justified.
Decision
The Employment Tribunal initially rejected Mr Augustine's claim, finding that there was no less favourable treatment because both part-time and full-time drivers were subject to the same flat circuit fee.
Mr Augustine appealed to the Employment Appeal Tribunal (EAT), which upheld the tribunal's decision. The EAT acknowledged that the tribunal had erred in its approach to the question of less favourable treatment but concluded that the flat fee was not imposed solely on the ground of part-time status.
The case was then taken to the CoA, which also dismissed Mr Augustine's appeal. The CoA followed the precedent set by the Inner House of the Court of Session in McMenemy v Capita Business Services Ltd, which requires that unfavourable treatment must be solely on the ground of part-time status to constitute discrimination under the PTWR.
Although the CoA expressed misgivings about the correctness of the McMenemy decision, preferring an approach which looked at the ‘effective and predominant cause’ of the less favourable treatment, it felt bound to follow it to maintain consistency across Great Britain.
Comment
This case underscores the complexities employers face when dealing with part-time worker discrimination claims. The decision highlights the importance of understanding the legal requirements for proving less favourable treatment under the PTWR.
Employers should ensure that their policies and practices do not inadvertently discriminate against part-time workers and should be prepared to justify any differential treatment objectively.
The CoA’s decision also points to a potential area of legal uncertainty, as it acknowledged that the current interpretation of the PTWR might not fully align with the intended protections, in particular where unfavourable treatment is not solely because of part-time status.
Leave has been granted to appeal to the Supreme Court which may result in a change to the current approach that part-time status must be the sole reason for less favourable treatment for discrimination to be actionable.
Until a decisive ruling is made, where part-time status is one of a number of reasons for less favourable treatment, we recommend employers seek early advice on how best to manage the associated risks.
Published 23 June 2025
