Augustine v Data Cars Ltd

Regulation 5(1) of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 gives a part-time worker the right not to be treated less favourably than the employer treats a comparable full-time worker. By regulation 5(2), this right applies “only if (a) the treatment is on the ground that the worker is a part-time worker; and (b) the treatment is not justified on objective grounds.” The Regulations implement an EU Directive (Directive 97/81/EC of 15 December 1997 (“the Part-time Work Directive”), which in turn required EU Member States to give effect to an agreement reached between groups representing organised labour and industry/employer representative bodies (the “Framework Agreement”). Clause 4.1 of the Framework Agreement provides that “part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds” (emphasis added).

On the facts of the case, the Appellant (Mr Augustine) had worked as a part-time hire car driver for the respondent (Data Cars Ltd). Mr Augustine had paid Data Cars Ltd a ‘circuit fee’ each week for access to its booking dispatch system. The circuit fee was the same for all drivers, irrespective of whether they were full-time or part-time workers. Mr Augustine claimed that the application of the fixed circuit fee was less favourable treatment of him on the basis of his part-time status, because it meant that he paid a higher fee per hour to drive than a comparable full-time driver. However, the Employment Tribunal considered that the treatment was only unlawful if the circuit fee was charged on the “sole ground” that Mr Augustine was a part-time worker, which it was not. Mr Augustine appealed that decision, and the case came before the Employment Appeal Tribunal and then the Court of Appeal.

In the jurisprudence dealing with this issue, the courts had been divided as to whether regulation 5 of the 2000 Regulations prohibits only less favourable treatment “solely” attributable to a worker’s part-time status, or whether (in line with other prohibitions on discrimination) it prohibited less favourable treatment which had part-time status as its effective cause. The Scottish Court of Session had concluded that the regulation did not prohibit such treatment. The majority of the Court of Appeal in Augustine reached the opposite conclusion but considered it necessary to follow the Court of Session’s view. Mr Augustine therefore appealed to the Supreme Court.

By its judgment, the Supreme Court concluded that regulation 5 does prohibit less favourable treatment where part-time status is the effective cause. The Court therefore resolved the question and ensured consistency in the application of the Regulations across the jurisdictions, having been assisted by submissions from the legal teams on both sides (each acting pro bono).

Tristan Jones KC and Aislinn Kelly-Lyth appeared for the Appellant, instructed by A&O Shearman.

Tom Mountford and Hugo Murphy appeared for the Respondent, instructed by Mishcon de Reya LLP.

The judgment is available here.