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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Augustine v Data Cars Ltd [2025] EWCA Civ 658 (20 May 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/658.html Cite as: [2025] WLR(D) 275, [2025] ICR 1404, [2025] EWCA Civ 658 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Eady J (President), Mrs. Gemma Todd, Dr. Gillian Smith MBE
EA-2022-00473-LA
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ELISABETH LAING
and
LORD JUSTICE EDIS
____________________
WARREN AUGUSTINE | Appellant |
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| - and - |
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| DATA CARS LIMITED |
Respondent |
____________________
Tom Mountford (instructed by Mishcon de Reya) for the Respondent
Hearing date: 10 April 2025
____________________
Crown Copyright ©
Lord Justice Edis:
Augustine,
had been treated less favourably than full time workers by the Respondent, Data Cars Limited by whom he was employed. The EAT nevertheless dismissed his claim under regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the 2000 Regulations"). This was because the EAT found that the less favourable treatment was not solely on the ground that he was a part-time worker, although his part-time status was an effective cause of it. The EAT held that this was the wrong test in law, and that the right under Regulation 5(1) not to be subjected to less favourable treatment applies where the status as a part-time worker was an effective cause of the less favourable treatment even if not the sole cause. However, the EAT held that it ought to follow a decision of the Court of Session (Inner House) to the contrary effect, namely McMenemy v. Capita Business Services Limited [2007] IRLR 400 ("McMenemy").
i) GROUND 1: the EAT erred at paragraph 82 in deciding to approach the appeal on the basis that McMenemy was binding upon it. The EAT had already correctly held that McMenemy was not binding as a matter of law; and it had also decided that McMenemy was wrong as a matter of law; and in the circumstances the EAT ought not to have followed McMenemy.
ii) GROUND 2: In any event, the Court of Appeal is not bound by the McMenemy decision and for the reasons identified in the EAT's judgment McMenemy is wrong in law and ought not to be followed. Regulation 5 of the 2000 Regulations applies if a worker's part time status is an effective cause of the less favourable treatment; the claimant does not need to show that his part-time status was the sole cause of the less favourable treatment.
i) Whether the EAT was right to hold that McMenemy was wrongly decided on the point at issue.
ii) If so, should this court follow McMenemy?
The facts
The Regulations
"19.— Part-time work: discrimination.
(1) The Secretary of State shall make regulations for the purpose of securing that persons in part-time employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than persons in full-time employment.
(2) The regulations may—
(a) specify classes of person who are to be taken to be, or not to be, in part-time employment;
(b) specify classes of person who are to be taken to be, or not to be, in full-time employment;
(c) specify circumstances in which persons in part-time employment are to be taken to be, or not to be, treated less favourably than persons in full-time employment;
(d) make provision which has effect in relation to persons in part-time employment generally or provision which has effect only in relation to specified classes of persons in part-time employment.
(3) ………
.
(4) Without prejudice to the generality of this section the regulations may make any provision which appears to the Secretary of State to be necessary or expedient—
(a) for the purpose of implementing Council Directive 97/81/EC on the framework agreement on part-time work in its application to terms and conditions of employment;
(b) for the purpose of dealing with any matter arising out of or related to the United Kingdom's obligations under that Directive;
(c) for the purpose of any matter dealt with by the framework agreement or for the purpose of applying the provisions of the framework agreement to any matter relating to part-time workers."
"217. The regulations will primarily address less favourable treatment in non-statutory terms and conditions, as statutory employment rights in the UK do not treat part timers less favourably than their full-time equivalents. The powers are widely drawn and the Government intends to consult fully on how they should be used, by discussing with interested parties and publishing draft regulations for comment. Section 42 provides that the regulations will be subject to the affirmative resolution procedure."
"5.— Less favourable treatment of part-time workers
(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker–
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) 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.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.
(4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime."
""pro rata principle" means that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker;"
Article 1
The purpose of this Directive is to implement the Framework Agreement on part-time work concluded on 6 June 1997 between the general cross-industry organizations (UNICE, CEEP and the ETUC) annexed hereto.
"Whereas the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements for part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike."
"Clause 4: Principle of non-discrimination
1. In respect of employment conditions, 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.
2. Where appropriate, the principle of pro rata temporis shall apply."
"These Regulations come into force on 1st July 2000 and implement Directive 97/81/EC (normally referred to as the Part-time Work Directive) as extended to the United Kingdom by Directive 98/23/EC, in Great Britain.
The Regulations give part-time workers the right in principle not to be treated less favourably than full-time workers of the same employer who work under the same type of employment contract. In addition a right is given to workers who become part-time or, having been full-time, return part-time after absence, to be treated not less favourably than they were before going part-time.
The rights apply where the less favourable treatment is on the ground that the worker is part-time and is not justified on objective grounds.
The rights are exercisable by complaint to an employment tribunal."
The previous decisions on this issue reviewed by the EAT
McMenemy
"…parties were agreed on the approach to the construction of this legislation. The 2000 Regulations should be construed consistently with the Directive, and should be given a purposive construction."
"[6] It was common ground between the parties that the foregoing cases established the proper approach construction of the legislation. It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers, or were intended to do more than to bring UK law into line with community law. Where the parties disagreed was over the implications of the inclusion of the word 'solely' in cl 4.1 of the Directive. In our opinion, the language of cl 4.1 of the Directive connotes the need to consider whether there is a causative connection between the discrimination complained of by the worker and the part time nature of the worker's employment. As we have said, the prohibition is against less favourable treatment of part-time workers, than comparable full-time workers, for the reason that they work part-time and for that reason alone. This necessitates inquiry into the employer's intention in so treating the part-time worker."
"[C]lause 4 of the Framework Agreement annexed to Directive 97/81, in regard to employment conditions, precludes part-time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part-time unless different treatment is warranted on objective grounds."
"The part-time worker who complains that his employer is treating him less favourably than he does a comparable full-time worker in breach of the legislation must therefore establish that the employer intends to treat him less favourably on the sole ground that he is a part-time worker (see the passage in Wippel v Peek & Cloppenburg GmbH & Co KG quoted). Additional reasons for construing the word 'solely' in this way are that, as counsel for the respondents pointed out, there is, first, no reference in the Directive to indirect discrimination and, secondly, different treatment, if established, may nevertheless be 'justified on objective grounds'."
Sharma and Carl
"The "sole reason" issue
47 As we have said, the tribunal apparently considered that it was bound by the decision in Gibson v Scottish Ambulance Service 16 December 2004 to conclude that the part-time nature of the worker's status had to be the sole reason for the discriminatory treatment. We have no doubt that this is not a legitimate construction of the Regulations, and in Gibson itself the appeal tribunal hardly gave a ringing endorsement of the construction.
48 In our judgment, the reference to "solely" in Directive 97/81 is simply intending to focus upon the fact that the discrimination against a part-timer must be because he or she is a part-timer and not for some other independent reason.
49 To take a simple example, if the employer decided to discriminate against all part-timers over the age of 30 it could be said that there were two reasons for the discrimination: being a part-timer, and being of a certain age. Similarly, if the employer deliberately discriminates against all his part-timers in factory A but not those with identical full-time comparators in factory B, can it really be said that, because only some part-timers are selected for the less favourable treatment, the Directive (and by extension the Regulations) are not intended to be applicable?
50 In our judgment it is inconceivable that the Directive was not intended to outlaw such treatment (subject to justification) and we have no doubt whatsoever that it would inevitably be construed by the European Court of Justice to do so. Any other conclusion would wholly undermine the very purpose of the Directive. The fact that not all part-timers are treated adversely does not mean that those who are cannot take proceedings for discrimination if being part-time is a reason for their adverse treatment.
51 In our judgment, once it is found that the part-timer is treated less favourably than a comparator full-timer and being part-time is one of the reasons, that will suffice to trigger the Regulations."
"39. On appeal we note from the judgment of Lord Nimmo Smith that the Court of Session were satisfied ([3]) that the less favourable treatment of part-time workers must, under the Directive, be for the reason that they work part-time and for that reason alone. Further, and we think significantly, it was common ground between the parties ([5]) that the Regulations should be construed consistently with the Directive and should be given a purposive approach.
Reference is then made to Wippel [2005]1C.M.L.R. 9 and in particular [54] of the ECJ Judgment, where it is said:
''Clause 4 . . . precludes part time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part time . . .'
40. Indeed, at [6], Lord Nimmo Smith records:
''It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers or were intended to do more than to bring United Kingdom law into line with Community law.''
Gibson was cited to the Court (Mr Napier again appeared for the employer on this occasion) and approved.
41. Before us Mr Pilgerstorfer does not make the same generous concession recorded by the Court of Session in McMenemy [2006] IRLR 761. He invites us to follow the President's judgment in Sharma [2008] IRLR 336.
42. We are not strictly bound by any of the previous cases; even by the Court of Session. For our part we agree with Mr Pilgerstorfer. The expression ''on the ground that'' or ''on the grounds of'' frequently appears in our domestic legislation. It was considered by the Court of Appeal in English in the context of the Sexual Orientation Regulations 2003, where the majority (Sedley and Laurence Collins L.JJ.) read the domestic provisions consistently with the Equal Treatment Framework Directive which they were designed to implement. Laws L.J. took a different view. However, we agree with the President in Sharma [2008] IRLR 336 that whereas domestic legislation must provide the protection contained in the Directive, it is not limited to such protection. ''On the ground that'' in reg.5(2)(a) means what Mummery P. said the similar expression in the SDA meant. Part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause."
"The use of the expression ''on the ground of'' appears in s.1(1)(a) SDA and RRA, as we have earlier mentioned. In interpreting that expression in O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] ICR 33; [1996] IRLR 372 at [43F], Mummery P said;
''The basic question is: what, out of the whole complex of facts before the tribunal, is the 'effective and predominant cause' or the 'real or efficient cause' of the act complained of?"
and later (at [43G]) he added:
''The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. 'It is enough if it is an effective cause:' Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] Q.B. 375; [1995] 2 W.L.R. 607 at [406 EF] (CA).''
"72. ……….if we are wrong about that, however, we cannot see why that minimum requirement should limit a wider protection allowed under domestic law; in this regard, we consider that the concession recorded at paragraph 6 McMenemy was wrongly made. As for the additional reasons given for the McMenemy construction (cited at the end of paragraph 6 in that case), we are unable to see why any lack of reference to indirect discrimination in the [2000 Regulations], still less the inclusion of a justification defence, should be seen as supporting a narrow approach.
73. For completeness, to the extent that the ET considered the respondent's intention to be a relevant consideration when determining causation (see, e.g., the ET at paragraph 60), we would also consider this to demonstrate an error in its approach. As has been made clear in the case-law, when determining the reason why the treatment in question occurred, the motive or intention of the relevant actor or decision-taker is not relevant (Amnesty International v. Ahmed [2009] ICR 1450 EAT; R (oao E) v Governing Body of JFS and ors [2009] UKSC 15). Insofar as the reasoning of the EAT in Gibson ("it is necessary to look at the intention behind the decision ..."), or that of the Inner House in McMenemy ("This necessitates inquiry into the employer's intention ..."), suggests that the employer's intention or motive is a relevant factor, we would find that hard to reconcile with the approach that has been laid down in later cases."
Discussion
"The Directive was brought forward under the Agreement on Social Policy to adopt as Community law a Framework Agreement between the European social partners. (These are three federations consisting of national organisations representing respectively employers, trade unions and companies with public ownership or public interest in each Member State. The CBI and TUC are both members of their appropriate groups.) It aims to remove discrimination against part-timers and improve the quality of part-time work. In Chapter 5 of Fairness at Work , the Government welcomed the Directive and said it would implement the Directive before April 2000. This provision gives the Secretary of State the powers to ensure that all aspects of the Directive and the Framework Agreement are fully implemented, together with related matters."
i) The 2000 Regulations should be construed consistently with the Directive, and should be given a purposive construction.
ii) It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers, or were intended to do more than to bring UK law into line with Community law.
Lady Justice Elisabeth Laing
Introduction
The facts
Augustine
had not been treated less favourably than a comparable full-time driver.
Augustine
was a part-time worker. The ET noted that the respondent and other similar companies (unlike Uber) did not collect customers' fares; customers paid the fares directly to the drivers. The circuit fee was necessary because it enabled the respondent to earn revenue from its business. The ET held that 'the reason why' Mr
Augustine
was charged a circuit fee was because that was what other comparable companies did. He was not charged a circuit fee because he worked fewer hours than some of his colleagues (judgment, paragraphs 59-66).
The Employment Appeal Tribunal's conclusions
Augustine
appealed on two grounds. He challenged the findings of the ET both that there was no less favourable treatment and that the ground of that treatment was not that he was a part-time worker. The EAT held that the ET's conclusion on the first ground was wrong in law (judgment, paragraphs 27-33). The EAT also held that the ET erred in law in asking whether Mr
Augustine's
status was the sole ground of his treatment, and if and to the extent that it had taken into account the respondent's intentions. It held, nevertheless, that it was bound by McMenemy, and, applying McMenemy (at least provisionally), that Mr
Augustine's status was not the sole ground for his treatment by the respondent.
The issues
i) What is the test in the Directive?
ii) Is there any suggestion in the Regulations that the test is more generous?
The text of the Directive
The background
The Recitals to the Directive
The Directive
The Framework Agreement
Section 19 of the Act
The Regulations
Comparable instruments
The meaning of clause 4 of the Framework Agreement
The meaning of regulation 5(2) of the Regulations
The reasoning in McMenemy
Sharma v Manchester City Council
The relevant reasoning of the EAT in this case
Is the reasoning in McMenemy wrong?
Conclusion
Lord Justice Bean
"(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker......
(2) The right conferred by paragraph (1) 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."