Augustine v Data Cars Ltd [2025] EWCA Civ 658
The Court of Appeal considered the correct approach to causation in claims for less favourable treatment of part-time workers under regulation 5 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations 2000), which implemented EU law obligations contained in the Part-Time Work Directive (97/81/EC) (Directive) and Framework Agreement on Part-time Work (Framework Agreement). In particular, the court considered whether McMenemy v Capita Business Services Ltd [2007] CSIH 25 was correctly decided.
The claimant, a private hire driver, was required to pay a flat-rate circuit fee of £148 per week to his employer, the respondent. The circuit fee was payable by all drivers, irrespective of whether they worked full time or part time. The claimant brought a claim in the employment tribunal contending that the circuit fee constituted less favourable treatment on the basis of his part-time status, contrary to regulation 5 (see Part-time workers, Q&A here). The tribunal dismissed the claim. In the alternative, the tribunal held that even should the claimant be able to establish less favourable treatment, his part-time status was not the sole ground for such treatment (following the approach of the Court of Session, Inner House in McMenemy). The claimant appealed to the EAT.
The EAT disagreed with the tribunal's approach to the question of whether there had been less favourable treatment, but ultimately upheld the tribunal's decision to dismiss the claim on the grounds of causation (see FC Judgments Round-up 26 July 2024). The EAT considered that McMenemy ought to be followed but found that its approach to causation was incorrect. The EAT held that the right not to be subjected to less favourable treatment applies where the part-time worker status was an effective cause of such treatment even if not the sole cause. The claimant further appealed to the Court of Appeal. The issues for the Court of Appeal to determine were: (i) whether the EAT was right to hold that McMenemy was wrongly decided on the point at issue (that being the approach to determining causation); and (ii) if so, whether the court should follow McMenemy.
The Court of Appeal dismissed the appeal, but it was divided in its reasoning as to the correctness of McMenemy. Edis and Bean LJJ held that the decision of the Inner House was wrong. Edis LJ considered that there was no good reason why the PTW Regulations 2000, which fully implemented the Directive and Framework Agreement in UK law (see Q&A here), should be construed as if they incorporated the word 'solely' from clause 4.1 Framework Agreement when it must have been a deliberate decision to omit it. Edis LJ also found that the less favourable treatment must be substantially caused by the part-time status of the person affected by it, therefore agreeing with the EAT. Bean LJ observed that the word 'only' in regulation 5(2) meant that the conditions set out in regulation 5(2)(a) and (2)(b) must be satisfied for the right of part-time workers not to be treated less favourably to apply. Despite 'only' being a similar word to 'solely', Bean LJ stated that regulation 5(2)(a) should not be construed as reading 'the treatment is solely because the worker is a part-time worker'. Laing LJ disagreed with both judges, holding that McMenemy was correctly decided and that the test should remain whether the less favourable treatment was 'solely because' of part-time status.
Edis and Bean LJJ nevertheless followed McMenemy to ensure that the rules of precedent are applied in a way which avoids inconsistent decisions being reached in different UK jurisdictions (applying Abbott v Philbin [1960] Ch 27 (Court of Appeal) and [1961] AC 352 (House of Lords)). Acknowledging the unsatisfactory state of the law relating to part-time workers and the pending Supreme Court decision on the appeal against Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156, which applied Abbott, both judges stated that they would grant permission to appeal to the Supreme Court.
For more information on the right of part-time workers not to be treated less favourably than comparable full-time workers, see Part-time workers/Less favourable treatment.
First published on the Employment News Service on 6 June 2025.
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