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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mireku v London Underground Ltd (Part-Time Workers - Regulation 5 Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000) [2025] EAT 57 (29 April 2025) URL: https://www.bailii.org/uk/cases/UKEAT/2025/57.html Cite as: [2025] EAT 57 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
DEPUTY JUDGE OF THE HIGH COURT
____________________
MR J MIREKU | Appellant |
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| - and - |
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| LONDON UNDERGROUND LIMITED |
Respondent |
____________________
Rebecca Thomas (instructed by Eversheds Sutherland (International) LLP) for the Respondent
Hearing date: 16 January 2025
____________________
Crown Copyright ©
SUMMARY
Part Time Workers – Regulation 5 Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000
The Claimant works part-time as a Customer Service Supervisor for London Underground. On 19 October 2022, he requested overtime duties. That request was initially agreed, but then cancelled. The Tribunal found the cancellation was not because of the Claimant's part-time status and that there were materially different circumstances between the Claimant and his comparators. The Claimant appealed on the basis that the Tribunal applied the incorrect test of causation. He submitted the correct approach involved considering whether the "effective and predominant cause" of the treatment was his part-time status. He invited the EAT to depart from its conclusion in Augustine v Data Cars Limited [2025] ICR 19, viz that to satisfy Regulation 5(2)(a), a claimant's part-time status must be the "sole ground" for the treatment.
Held, dismissing the appeal:
(i) Applying British Gas Trading Ltd v Lock & Another [2016] ICR 503, it was not appropriate to depart from the decision of the EAT in Augustine. Whilst there were inconsistent EAT authorities concerning the test of causation under Regulation 5(2)(a), there was no inconsistency concerning how those authorities, and the decision of the Inner House of the Court of Session in McMenemy v Capita Business Services Ltd [2007] SC 492, fell to be reconciled: see Augustine. In any event, there were good reasons for this Tribunal to apply the approach set out in Augustine unless and until such time as the more senior courts took a different view.
(ii) In the present case, the Employment Tribunal did not err in law in dismissing the Claimant's claim under Regulation 5. Whatever test of causation is applied, the Tribunal's findings about why the overtime request had been cancelled were incompatible with part-time status being the ground for the treatment. In these circumstances, it was not necessary or desirable for the EAT to await the Court of Appeal's decision in Augustine.
(iii) The Claimant's case was in any event bound to fail because the Tribunal had found the comparators he relied on were not comparable full-time workers. No appeal was advanced to challenge that finding.
MARCUS PILGERSTORFER KC, DEPUTY JUDGE OF THE HIGH COURT:
Introduction
Mireku,
invites the Employment Appeal Tribunal ("EAT") to depart from Augustine and reach a different view as to the causation test which applies. The appeal therefore raises the issue of whether in the circumstances it is appropriate to depart from a recent previous decision of the EAT: see British Gas Trading Ltd v Lock & Another [2016] ICR 503. Further, it is necessary to consider the submission of the Respondent, London Underground Limited, that Mr
Mireku's
claim falls to be dismissed whatever test of causation applies.
The Appeal
Mireku
presented a claim to the Employment Tribunal at London South in which he complained of detrimental treatment contrary to the Regulations. He also complained of breach of contract. The matter came before Employment Judge Curtis on 12 October 2023. In a judgment dated 29 November 2023, sent to the parties on 5 December 2023, the Judge dismissed the part-time worker claim. Mr
Mireku
applied for reconsideration of the judgment by letter of 17 December 2023. In response, on 1 February 2024, the Tribunal sent to the parties a corrected judgment (which confirmed the breach of contract claim had also been dismissed for want of jurisdiction) and corrected some minor errors in the written reasons. The Tribunal also promulgated a judgment otherwise dismissing the reconsideration application.
Mireku
appealed against the judgment sent to the parties on 5 December 2023. There is a single ground of appeal which contends that the Tribunal erred in law when it decided that the cancellation of Mr
Mireku's
overtime on 19 October 2022 was not less favourable treatment on the grounds of being a part-time worker. Mr
Mireku's
case is that the knock-on effect of that finding was that the Tribunal failed to conclude that two other detriments, which had been found to be less favourable treatment on the grounds of being a part-time worker, were part of a series of acts ending on 19 October 2022 (a date in time). Instead, the Tribunal decided that the two earlier detriments were out of time and it was not just and equitable to extend time.
The Facts
Mireku
has been employed by London Underground since 14 March 2005, most recently as a Customer Service Supervisor ("CSS"). In that role, he is responsible for supervising the safe operation of a station and its staff. On 17 January 2022, Mr
Mireku
signed a job share arrangement with Ikram Patel. Between them, Mr
Mireku
and Mr Patel were to cover the role of a full time CSS by working alternately two weeks 'on' and two weeks 'off'. The Area Manager for Paddington, Phil Simpson, agreed this arrangement on 22 February 2022 and it began on 3 April 2022.
Mireku
asked Customer Service Manager ("CSM") Martin Summers if he could work a duty on 4 June 2022. Mr Summers refused "as it was one of the Claimant's weeks off and he was not allowed to work on his 'off' weeks": see judgment [14].
Mireku
emailed CSM Soman Krishnan asking to work an overtime shift on 4 June 2022. Initially, on 29 May 2022, CSM Krishnan agreed, but later the same day he emailed again to say Mr
Mireku
could not work the duty "as it was during his '2-week off' period under his job share arrangement": judgment [17].
Mireku
challenged this by emails of 29 and 30 May 2022, rejecting the notion of a restriction preventing him working during the period of his job share when Mr Patel was working.
Mireku
could work overtime during his 'off' weeks.
Mireku
was then signed off sick for a period from 14 June 2022. During this time, he told Mr Simpson that he did not want to return to the Paddington area. Arrangements were made for him to work in the Whitechapel area upon his return to work. Although his work was in Whitechapel, Mr
Mireku's
employment was still to sit within the Paddington budget. The Tribunal found that "An important consequence of this was that any overtime worked came out of the Paddington budget and not the Whitechapel budget. For this reason Mr Simpson wanted to be kept aware of any potential overtime": judgment [25].
Mireku
would be working in the Whitechapel area and giving details of his working pattern. The message continued: "The odd OT shift is fine but we must be mindful James is still contracted to AM Phil Simpson so extra … hours by exception please": judgment [26].
Mireku
requested an overtime shift on 3 October 2022. Mr Ingall agreed subject to Mr Simpson also agreeing. Mr
Mireku
complained about this to Sue Lofthouse, Head of Customer Services, on 6 October 2022. He was aggrieved because, unlike other colleagues at Whitechapel, his overtime had to be approved by two managers. The Tribunal had before it an email thread between Ms Lofthouse, Mr Ingall and Mr Simpson about this. Mr Ingall explained that overtime would be by exception as it came out of the Paddington budget and there might be issues about Mr
Mireku
taking overtime away from local staff. After Ms Lofthouse indicated she wanted to go back to Mr
Mireku
with something definitive, Mr Simpson said: "I'm happy for him to do overtime in accordance with business needs at Whitechapel, together with the obvious fair distribution amongst other staff. A shift a week is fine by me": judgment [30]. Accordingly, Ms Lofthouse wrote to Mr
Mireku
on 11 October 2022 explaining:
"I have clarified the position with Steve [Ingall] and Phil [Simpson]. In principle Phil is happy to pay for up to 1 shift a week for overtime if there is a business need for it at Whitechapel and obviously following local allocation process. The CSMs would have to authorise as normal but the agreement in principle is there for 1 shift a week. This may change dependent on business need, as with any overtime – it is discretionary."
Mireku
emailed Mr Simpson and Mr Ingall to say that he had been assigned duties on one of his non-working weeks and would work it as overtime. In the absence of Mr Simpson and Mr Ingall, another CSM (Ronald Luke) emailed Mr
Mireku
to say he had removed his name from the duty list as it was not one of his working weeks. In relation to overtime, CSM Luke said that whilst it had been indicated that Mr
Mireku
could do one overtime shift a week, he needed to know how that would be agreed and was waiting for clarification from Mr Simpson.
Mireku
made a request to do overtime duties between 22-28 October 2022. CSM Samuel Oluwa informed Mr
Mireku
that he had been pencilled in for 22 and 25 October, however CSM Mo Khan then emailed (also on 19 October 2022) to say that as it was not his working week, the overtime had been cancelled. On 20 October 2022 CSM Khan emailed Mr
Mireku
saying "As per previous email from CSM Luke we have been told [you are] allowed to work one day OT on the weeks you're at work. I am unable to authorise anything beyond that".
Mireku
was moved to the Edgware Road and Euston Square areas. Mr Simpson emailed the area managers for these areas on 2 November 2022 to give details of his work pattern and to say that he could apply for any overtime advertised, just like any other member of staff, following due process. Mr Simpson agreed to be responsible for the overtime costs and the recipients of the email were given authority to approve overtime for Mr
Mireku.
Unfortunately, however, following his move, Mr
Mireku
was not included on the mailing list to which overtime vacancies at Edgware Road and Euston Square were sent; rather he remained on the Paddington mailing list.
The Judgment Below
Mireku's
case was that he had been subject to seven detriments contrary to Regulation 5(1)(b) of the Regulations. These were as follows:
i. On 25 May 2022, CSM Summers saying he could not do overtime as he was job sharing.
ii. On 29 May 2022, CSM Krishnan cancelling approval for MrMireku
to work overtime on 4 June 2022.
iii. On 27 September 2022, Area Manager Ingall telling managers at Whitechapel that the odd overtime shift was fine but they must be mindful that MrMireku
was still contracted to Mr Simpson "so extra hours by exception only".
iv. On 11 October 2022, Ms Lofthouse communicating the decision that MrMireku
could work up to 1 shift per week as overtime.
v. On 19 October 2022, CSM Khan cancelling MrMireku's
pencilled in overtime for 22 and 25 October 2022.
vi. On 20 October 2022 CSM Khan informing MrMireku
that he was only permitted to work one day overtime per week.
vii. Not including MrMireku
in the mailing list for overtime for the Edgware Road and Euston Square areas.
Mireku
was a part-time worker. In relation to allegation (i), the Tribunal held that Mr Summer's refusal on 25 May 2022 to allow Mr
Mireku
to work overtime would not have happened to a full-time worker: "a full-time worker would not have been told such a thing": see judgment [50]. The Tribunal found the comparable full time worker that had been named, Mr Summers, was able to work overtime on his non-working days.
Mireku's
overtime on 4 June 2022 was cancelled was because of "a mistaken belief that job share workers were not permitted to do overtime on their rest days", a reason which did not apply to a full-time worker: judgment [57-8].
Mireku's
overtime and extra hours were found to be as follows (judgment [70-1]):
"70. It is clear to me from the evidence presented that the reason for limiting the Claimant's overtime and extra hours were the following:
[70.1] A general desire to limit overtime post-COVID and due to financial pressures on the Respondent
[70.2] The fact that the Claimant fell within the budget of Mr Simpson, although he was working for a different Area Manager
[70.3] The desire to make sure that there was a fair opportunity to access overtime as between the Claimant and the others in the area he was working (i.e. no preferential treatment)
71. None of these is in any way linked to the Claimant's part-time status. His part-time status had nothing whatsoever to do with this treatment."
"74. It was intended to be a way to make sure that there was a clear agreement as to the level of overtime the Claimant could have, as previously the Claimant had expressed frustration at having to get his overtime approved by two different area managers: the one for the area he was working (Mr In[g]le) and one for the Area Manager who held his budget (Mr Simpson).
75. I am satisfied this had nothing whatsoever to do with the Claimant's part-time status. Rather, it arose solely from the fact that the Claimant was budgeted to Mr Simpson whilst working in Mr Ingle's area."
"78. Unhelpfully I have not heard evidence from the decision maker as to the reason for cancelling the Claimant's overtime. I heard speculation from Mr Simpson as to why the overtime was cancelled, but I attach little weight to this aspect of his evidence as he was not the person who cancelled the overtime on this occasion.
79. Having considered the contemporaneous documents it is clear to me that the overtime was cancelled because the staff were not sure how to process it, given the previous discussion which had taken place about the 1 day per week overtime.
80. CSM Mo Khan was wrong when he said that the Claimant was only allowed to work overtime on the weeks that he was at work (email of 20 October 20222); that is contrary to the actual position, which was that the Claimant could work one day per week regardless of whether he was rostered), without additional authorisation from Mr Simpson.
81. In considering whether this treatment was because of the Claimant's part-time worker status, I have first considered the comparators put forward. The Claimant relies on other full-time workers, but in my judgment there are materially different circumstances between the Claimant and his comparators, and that the Claimant was working in a different area, and under a different Area Manager, to the budget holder for his overtime…
82. I am not satisfied that the treatment was because of the Claimant's part-time worker status.
83. In my judgment the reference to "management instructed only work one day of overtime on the weeks C worked" is simply a mistake by the Respondent. Mistakes can occur, even in organisations which ought to do better given their size and administrative resources, but that does not mean that the reason for the treatment was the Claimant's part-time worker status. The treatment was because of the Claimant's unusual proposition of working under an Area Manager who did not hold the budget for his overtime."
Mireku
on the mailing list for Edgware Road and Euston Square was because of his part-time worker status: "The Claimant wasn't able to link this to his part-time worker status in any way": judgment [85].
The Relevant Statutory Provisions
"(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."
"(6) Where a worker presents a complaint under this regulation it is for the employer to identify the ground for the less favourable treatment or detriment."
""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;"
"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."
Causation: The Different Approaches
"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. In Gibson v Scottish Ambulance Service, the Employment Appeal Tribunal, in construing this legislation, said (para 11):
'Whatever may be the motive of the employer, it is necessary to look at the intention behind the decision to impose part-time working, whatever may be its consequence in other respects. We therefore reject the "but for" test in this context and we consider that for the reasons given by the Tribunal, they applied their minds to the right question and reached a conclusion, namely, that the real reason was the issue of demand in the local area which means that the appellant was not being discriminated against on the ground that he was a part-time worker per se.'
We agree with this approach. 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'."
"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."
"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 v Thomas Sanderson Blinds Ltd [2009] ICR 543, in the context of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661), where the majority (Sedley and Lawrence Collins LJJ) read the domestic provisions consistently with the Equal Treatment Framework Directive 2000/78/EC ( OJ 2000 L303 , p 16) which they were designed to implement. Laws LJ took a different view. However, we agree with Elias J in Sharma that, whereas domestic legislation must provide the protection contained in the Directive, it is not limited to such protection. "On the ground that" in regulation 5(2)(a) means what Mummery J said the similar expression in the Sex Discrimination Act 1975 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 EAT's Judgment in Augustine
"If we were approaching regulation 5 PTWR absent any prior judicial consideration, we would not hesitate to adopt the same approach. To require that the complainant's status as a part-time worker be an effective cause of the less favourable treatment, even if not the sole cause of that treatment, seems to us to be entirely consistent both with the language of regulation 5(2) and with the protective purpose of the legislation. To hold otherwise would seem to us to be inconsistent with the approach standardly taken to questions of causation (see per Mummery J in O'Neill), and to risk the obviously perverse outcomes hypothesised by Elias J at para 49 of Sharma."
"82. Although the decision in McMenemy does not bind us as a matter of law, we consider there is a compelling case for not departing from what has been acknowledged to be good practice, whereby the EAT - which has a Britain-wide jurisdiction - should ordinarily follow relevant decisions of higher Courts within Great Britain, notwithstanding that the doctrine of precedent would not normally apply. Where, as here, the decision in question relates to a legislative protection that extends throughout Great Britain, and where there is no separate question as to the application of Scottish law, or the law of England and Wales, there is a legitimate public interest in consistency of approach. The fact that the issue raised by the present appeal has come before us by way of an appeal from an English ET is a matter of chance; as the case-law makes clear, this is an issue that has arisen (not infrequently) in cases both north and south of the England/Scotland border. In these circumstances, we consider that the appropriate course is to approach this appeal on the basis that the decision in McMenemy is binding upon us.
83. For completeness, we should make clear that we thus consider we are required to read regulation 5(2)(a) of the PTWR as providing that the less favourable treatment must be :
"on the sole ground that he is a part-time worker." (McMenemy, paragraph 6)
84. That, as we see it, is the ratio of the judgment of the Inner House, notwithstanding that, on the facts of the case, it might have been thought that the addition of the word "solely" was unnecessary: the reason for the less favourable treatment was unrelated to the fact that Mr McMenemy worked part-time, it purely arose from the fact that he did not work on Mondays."
The Arguments on this Appeal
Mireku,
advanced his submissions under two headings:
i. First, he submitted that the correct approach to Regulation 5(2)(a) was that outlined in Sharma and Carl. He argued that this was consistent with the Directive setting minimum (not maximum) standards for protection for part-time workers and with the approach adopted in other areas of employment law (discrimination cases, whistleblower detriment cases). He placed great emphasis on the preferred approach of the EAT in Augustine, and submitted that McMenemy was not binding and should not be followed. Mr Nacif then squarely addressed the EAT's decision in Augustine to follow McMenemy. He submitted that Augustine was wrongly decided on this point and should not be followed and that I was free to do so, applying British Gas Trading because there were conflicting decisions reached by different constitutions of this Appeal Tribunal: Sharma and Carl on the one side, and Augustine on the other.
ii. Mr Nacif accepted that the next part of his argument only arose in the event that he was successful on the first. Thus were I to follow the approach in Augustine and McMenemy, the appeal would fall to be dismissed. However were I to hold that Regulation 5(2)(a) required only the "effective and predominant cause" of the treatment to be part-time status, Mr Nacif submitted that the Tribunal erred in law by failing to adopt that approach and the case should be remitted to a fresh Tribunal. Mr Nacif took me to [79] of the judgment in which the Employment Judge found that MrMireku's
overtime was cancelled on 19 October 2022 because "staff were not sure how to process it", and [83] where the Judge saw that confusion as a mistake. Mr Nacif submitted that when searching for the "effective cause" of the cancellation, it was incumbent upon the Judge to examine why there was confusion and whether Mr
Mireku's
part-time status lay behind it.
i. First, on the issue of principle, Ms Thomas emphasised that all the relevant authorities on causation were comprehensively and recently reviewed by this Tribunal in Augustine and that a clear conclusion was reached that McMenemy should be followed. That conclusion, she submitted, should be followed by this Tribunal.
ii. Ms Thomas then submitted that whatever approach to causation is taken in this case, the result would be the same. The Tribunal found that the cancellation of MrMireku's
overtime on 19 October 2022 was due to confusion arising because of his position working for an Area Manager who did not hold the budget for his overtime: see [79, 83]. She submitted that meant part-time status was neither the sole cause, nor an effective and predominant cause of the cancellation.
iii. Further, by reference to the Respondent's Answer, Ms Thomas submitted that MrMireku's
appeal must fail in any event because the Tribunal found (at [81]) that in respect of the cancellation of overtime on 19 October 2022, Mr
Mireku
could point to no actual comparator and that is an essential requirement of Regulation 5(1).
Discussion and Conclusions
(1) Precedent and the Causation Test
"…Although this appeal tribunal is not bound by its own previous decisions, they are of persuasive authority. It will accord them respect and will generally follow them. The established exceptions to this are as follows:
(1) where the earlier decision was per incuriam, in other words where a relevant legislative provision or binding decision of the courts was not considered;
(2) where there are two or more inconsistent decisions of this appeal tribunal;
(3) where there are inconsistent decisions of this appeal tribunal and another court or tribunal on the same point, at least where they are of co-ordinate jurisdiction, for example the High Court;
(4) where the earlier decision is manifestly wrong;
(5) where there are other exceptional circumstances."
"77. I would not wish to add any further gloss to the concept of "manifestly wrong": it means a decision which can be seen to be obviously wrong ("manifest"). If the error in the decision is manifest it should not be necessary for there to be extensive or complicated argument about the point.
78. As for the concept of "exceptional circumstances" it is inherently one that is flexible and dependent on the circumstances. It is deliberately not defined by reference to an exhaustive list or in some other way because one cannot predict what circumstances will arise in the future and which may justify departure from an earlier decision. In this way courts and tribunals retain the flexibility required to do justice in the case before them. On the other hand it is also important to recall that certainty in the law is also a fundamental value: indeed it lies at the root of the concept of legal certainty which is well established in EU law and on which reliance has been placed by Mr Cavanagh in the course of his submissions albeit in a different context."
"In my judgment the present case does not fall into any of the established exceptions to the general principle that this appeal tribunal will normally follow one of its own earlier decisions. I have come to the conclusion that it would be inappropriate for me to reconsider the merits of the substantive argument, considered recently and at length by Langstaff J in Bear Scotland. If I were to accede to the invitation extended by Mr Cavanagh, however eloquently put, there would be nothing to prevent this appeal tribunal, if differently constituted, taking yet again a different view in a third case, perhaps in a year's time. Furthermore it would in the meantime merely create uncertainty for everyone who has to apply the relevant legislation, including the employment tribunal, which is bound by decisions of this appeal tribunal. I agree with the submission made on behalf of the Secretary of State by Mr Tolley that, if Bear Scotland was wrongly decided, then it must be for the Court of Appeal to say so, not for me sitting in this appeal tribunal."
i. First, causation is a critical constituent element of liability under Regulation 5. All involved in predicting the effect of, or applying, the Regulations have a legitimate need for clarity as to the correct test that applies. In Augustine the EAT sought to resolve the inconsistencies in the previous case law and provide a clear answer (at least at the level of this Tribunal). If I were to accept Mr Nacif's invitation and reconsider the substantive question, it would undermine the attempt in Augustine to provide certainty and clarity. Even if I were to reach the same conclusion as in Augustine, there would be nothing to stop a future appellant extending a similar invitation to a differently constituted EAT (as Singh J observed in British Gas Trading at [104]). The conscious attempt by the Appeal Tribunal to resolve previous inconsistencies and provide guidance would be for nothing.
ii. Further, the general position in the Courts is that "where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if it is reached after full consideration of the earlier decision": see White v Alder & Another [2025] EWCA Civ 392, per Asplin LJ at §18, applying Colchester Estates (Cardiff) v Carlton Industries Plc [1986] Ch 80, per Nourse J at 85D. Like the High Court, the EAT is a superior court of record[6] and I can see no reason of principle why the same general approach is not justified when the EAT is considering its own conflicting decisions. Here, the decision in Augustine was clearly reached after a full consideration of the earlier relevant decisions.
iii. Finally, there are two circumstances which make it undesirable to depart from Augustine in the present appeal. First, for reasons I shall shortly explain, I have reached the conclusion that on the facts found by the Tribunal, MrMireku's
claim must fail whichever approach is taken to causation. It is therefore strictly unnecessary to decide whether to depart from Augustine in order to determine this appeal. Secondly, it would appear that the Court of Appeal is in any event considering Augustine on further appeal. It is therefore unnecessary, and undesirable, for the EAT to revisit the substantive question in the interim.
(2) Application to the Present Case
Mireku's
overtime was cancelled on 19 October 2022 was because staff were not sure how to process it and made a mistake: see judgment [79, 83]. That finding, which was open to the Tribunal on the evidence, is inconsistent with the sole ground for the treatment being Mr
Mireku's
part-time status.
Mireku
could not have succeeded even had I concluded that the "effective and predominant cause" test was applicable. Mr Nacif argued that on the Sharma and Carl approach it would have been necessary for the Tribunal to ask why staff were not sure how to process the overtime, why the mistake had been made, and specifically whether that was due to Mr
Mireku's
part-time status. Ms Thomas' response was that the Tribunal did so and made a finding which provides the answer. After reaching its findings concerning the confusion and the mistake, the Tribunal found "The treatment was because of the Claimant's unusual position of working under an Area Manager who did not hold the budget for his overtime": see judgment [83]. Ms Thomas submitted that read in context, and in light of all the previous findings, the Tribunal was rejecting any suggestion that part-time status was the cause of the treatment complained of. Ms Thomas also submitted that although the Tribunal did not expressly refer to Carl (or, I might add, any of the case law I have referred to in this judgment) she had made reference to that decision in her oral submissions in order to submit that Mr
Mireku
could not establish causation whatever approach was taken.
Mireku
could not succeed with his Regulation 5 complaint. Read fairly, at [83] the Tribunal found that Mr
Mireku's
unusual working arrangement – working under an Area Manager who did not hold the budget for his overtime – gave rise to the confusion and the mistake and therefore the cancellation of the overtime. That was a reason which the Tribunal had found was entirely independent of Mr
Mireku's
part-time worker status. At [71], it held that the fact Mr
Mireku
fell within the budget of Mr Simpson although he was working for another Area Manager was not "in any way" linked to Mr
Mireku's
part-time status: "His part-time status had nothing whatsoever to do with this treatment". Those findings do not only address whether Mr
Mireku's
part-time status was the sole cause of the cancellation of his overtime on 19 October 2022, but also reject any case built on that status being an effective or predominant cause.
(3) The Comparator Point
"(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place—
(a) both workers are—
(i) employed by the same employer under the same type of contract, and
(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and
(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements."
Mireku's
appeal must fail in any event because the Tribunal found, at [81], that the real comparators he had identified in respect of the cancellation of his overtime on 19 October 2022 were not comparable full time workers. I have set out the Tribunal's reasoning at [81] above (see paragraph 23). It will be seen that the essential finding was that Mr
Mireku
was in a materially different position from that of his comparators because he was working in a different area and under a different Area Manager than the holder of the budget for his overtime. Ms Thomas submitted there was no appeal against this finding and that it was fatal to Mr
Mireku's
claim.
Mireku's
case cannot succeed and the appeal falls to be dismissed.
Disposal
Note 1 As the Tribunal recorded at [5.1], given the date of presentation and the dates of early conciliation, a complaint about something that happened before 2 August 2022 was prima facie out of time: see Regulation 8(2). [Back] Note 2 In Augustine, cited below, Eady P noted that it had been unfortunate that appellate decisions had often been made without reference to all the relevant authorities: see [39]. [Back] Note 3 A further authority is Ministry of Justice v Blackford [2017] ICR 277 in which Lady Wise, sitting in the EAT, was referred to the two approaches, but did not consider it necessary to express a view as to which was correct: [73]. [Back] Note 4 This was after the decision on the sift in the present appeal. [Back] Note 5 Per Laws LJ in Marshall’s Clay Products Limited v Caulfield & Others [2004] ICR 436. [Back] Note 6 See section 19 of the Senior Courts Act 1981 and section 20(3) of the Employment Tribunals Act 1996. See also Portec (UK) Limited v Mogensen [1976] ICR 396 in which the EAT held that decisions of the High Court were not binding on the EAT, albeit that they were of “great persuasive authority” and “we would not lightly differ from the principles which are there to be found”: at 400C-D. [Back] Note 7 The Tribunal expressed itself in [81] in terms of whether there were “materially different circumstances” between Mr
Mireku and his comparators. That appears to reflect the approach that would be taken in a direct or indirect discrimination case: see section 23(1) Equality Act 2010. Regulation 2(4), by contrast, provides a structured set of considerations which determine whether a full-time worker is a “comparable full-time worker”. [Back]