The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision that the imposition of a flat rate circuit fee by a minicab firm on a part-time driver, which was the same amount as the fee for full-time drivers, was not less favourable treatment on grounds of part-time status in Augustine v Data Cars Ltd.
The claimant was a part-time taxi driver employed by Data Cars Ltd (DC Ltd). All DC Ltd's drivers had to pay a weekly "circuit fee" of £148, which gave them access to DC Ltd's booking system, irrespective of whether they worked full or part time. The claimant brought a claim before an employment tribunal that the fee was contrary to Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR). The tribunal rejected his claim, finding that there was no less favourable treatment as the claimant and his full-time comparator were treated the same way but, even if the claimant could establish less favourable treatment, his claim would fail on the basis that he was not charged the circuit fee solely because he was a part-time worker.
On appeal, the EAT considered the question of less favourable treatment and observed that the claimant's complaint was not that DC Ltd imposed a circuit fee on all drivers, but that the imposition of a flat rate charge meant that he was paid proportionately less pay once the fee had been deducted. It then moved to consider Regulation 5(2) of the PTWR which provides that the right not to be subjected to less favourable treatment applies "only if" the treatment is "on the grounds that the worker is a part-time worker". The EAT stated that it would not hesitate to hold that a worker's part-time status must be the effective and predominant cause of the less favourable treatment, but that it need not be the only cause, were it not for the decision of the Inner House of the Court of Session in McMenemy v Capita Business Services. In McMenemy it was held that part-time status must be the sole cause of the treatment and the EAT considered itself bound by the decision. As a result, the EAT's preliminary view was that the claim must fail, although the parties were invited to make submissions on the issue.
Take note: The decision in Augustine confirms that there will be no breach of the Part-Time Workers Regulations where the less favourable treatment is not solely on the ground that the individual works part-time. However, it's worth noting that the EAT disagreed with the "sole reason" test but felt that it was bound by precedent.
