Part-Time Workers Discrimination

Background

MILS’ members will be familiar with the concept of part-time workers discrimination. Broadly speaking the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, prevent part-time workers being treated less favourably than full-time workers in equivalent roles.  

An important case in applying these Regulations in the UK was decided in a case called McMenemy v Capita Business Services Limited which looked at whether a part-time employee was treated less favourably than the full-time employees in relation to holidays.  In a key determination, the Inner House of the Court of Session in Scotland determined that the part-time workers regulations required the less favourable treatment to be solely on the grounds of part-time status.

Facts

In the facts of a recent case Augustine v Data Cars Limited, this question has once again been looked at by the Court of Appeal.  The Claimant was a part-time taxi driver who had to pay a flat weekly fee to the Respondent company.  The same fee was payable by all drivers regardless of whether they were part-time or full-time.  The Claimant alleged part-time worker discrimination in relation to this flat rate fee. 

On the facts it was argued that this fee was for many reasons and after various decisions the case went to the Court of Appeal.  The Court of Appeal held (very reluctantly) that there was no part-time worker discrimination on these facts because of the test set out in McMenemy v Capita Business Services Limited; that unfavourable treatment is only on the grounds of part-time worker status where being part-time was the sole reason for the treatment.  On the facts here, given there were other reasons, it was not the sole reason for the flat fee, and the original Respondent’s position was upheld and the claims failed.

Comment

The Judgment makes clear that there is a serious division in the legal thinking over this matter.  The majority of the Judges at the Court of Appeal felt that McMenemy had been wrongly decided but nevertheless they felt that because McMenemy was decided by the Inner House of the Court of Session, although the Court of Appeal is not bound to follow the Court as authority, diverting from it would be wrong.  The majority of the Court of Appeal clearly feel that part-time worker discrimination should be much broader and offer greater protection than cases where (rarely) part-time status is the only reason for less favourable treatment.  Bean LJ made clear this was not a satisfactory state of affairs and stated that if the Claimant wished to pursue an appeal to the Supreme Court then he should be granted leave to do so, meaning that we may now soon get a further ruling on this matter.  If an appeal proceeds to the Supreme Court, it is likely (although not definite) that the Court may overrule the decision in McMenemy meaning that part-time worker discrimination will offer broader protections for part-time workers than in recent years.