In October last year we reported the case of Augustine v Data Cars Ltd which posed the question whether a workplace provision applicable to both full and part-time workers could amount to part-time workers discrimination.
In Augustine, the claimant, a part time taxi driver was required to pay a flat weekly circuit fee of £148 which gave drivers access to the respondent’s database. However, even though he was part-time, the fee payable by him remained the same as those of his full-time comparators.
The claimant was unsuccessful in the first instance but the EAT upheld his appeal in part, determining that he was paying a higher circuit fee than his full-time comparator when it was considered as a proportion of his hours worked.
On appeal the Employment Appeal Tribunal, dismissed Mr Augustine’s case. The key factor considered was whether the detriment described by the part-time claimant was solely due to him being part-time worker. The EAT in Augustine therefore focused upon the “sole reason” test and upheld the Tribunal’s decision: charging the full circuit fee was not solely due to the claimant being a part-time worker.
On 20th May the Court of Appeal followed the Scottish and England & Wales Employment Appeal Tribunals and upheld the employer friendly decision but did so reluctantly with two out of three of the judges saying they thought the law was wrong but did not wish to diverge from the Scottish authority given the relevant statutory provisions applied throughout Great Britain, and there was a need for consistency of application. The Claimant has therefore been granted permission to appeal to the Supreme Court.
So watch this space. Although, as things stand the strict position on causation – part-time status must be the sole cause of less favourable treatment resulting in detriment, and not merely an effective cause – has been up-held there is a strong indication that is wrong. Employers and part-time workers will therefore have intellectually sustainable arguments to advance their causes.
Who says the law is an ass?
