Augustine v Data Cars Ltd [2025] EWCA Civ 658 (20 May 2025)

In this case, the Court of Appeal (“CA”) confirmed that part-time worker discrimination under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “2000 Regulations”) is limited to cases where the part-time status is the ‘sole’ reason for the less favourable treatment.

The Claimant was a part-time private hire driver working for the Respondent. All full-time and part-time drivers working for the Respondent had to pay a ‘circuit fee’ to the Respondent (regardless of the number of hours worked during the week) in order to access the Respondent’s booking system. The Claimant argued this circuit fee disproportionately affected part-time workers as it was a greater share of their earnings compared to full-time drivers.

Under the 2000 Regulations, part-time workers have the right not to be treated less favourably than a comparable full-time worker. The 2000 Regulations implement the Part-Time Work Directive 97/81 (the “Directive”), which was itself intended to implement a Framework Agreement on part-time work annexed to the Directive (“Framework Agreement”).

Regulation 5(2)(a) of the 2000 Regulations states that the right not to be treated less favourably applies only if “the treatment is on the ground that the worker is a part-time worker”. The key legal issue in this case concerned the interpretation of that provision and whether the part-time status must be the sole reason for the less favourable treatment, or whether it is sufficient for it to be an effective cause.

The Employment Appeal Tribunal (“EAT”) had decided that the Claimant had been treated less favourably than comparable full-time workers by the Respondent. However, it nevertheless dismissed the appeal on the basis that the less favourable treatment was not “solely” on the ground that the Claimant was a part-time worker. The EAT decided it was bound to follow the “sole cause” test set out in a decision of the Scottish Court of Session (Inner House) (McMenemy v Capital Business Services Limited), despite the broader “effective cause” test that had been used in other English EAT decisions.

The question for the CA was: (i) whether the EAT was right to hold that McMenemy was wrongly decided on the point at issue, and (ii) whether the CA should follow McMenemy. The CA unanimously dismissed the appeal and upheld the EAT’s decision that the correct approach was to follow McMenemy and apply the “sole cause” test, despite the majority of the CA finding that McMenemy was wrongly decided. Specifically:

• The majority decided that the phrase "on the ground that" should not be interpreted as requiring part-time status to be the sole reason for less favourable treatment. The CA noted that the word “solely” is used in the Framework Agreement, but not in the 2000 Regulations, and the CA was therefore required to decide whether the 2000 Regulations should be construed as consistent with the Framework Agreement. This would provide less complete protection for part-time workers who could not show their part-time status was the sole cause of the less favourable treatment. The CA could not find any good reason why the 2000 Regulations should be construed as if they incorporated the word “solely” when it must have been a deliberate decision to omit this word. Therefore, the CA considered that McMenemy was wrongly decided.

• Despite that, the CA felt bound to follow McMenemy to avoid inconsistent decisions being reached across UK jurisdictions as the ET operates in Scotland as well as England and Wales. The CA stated that whilst it is not bound by the doctrine of precedent to follow decisions of the Inner House of the Court of Session in Scotland or the Court of Appeal in Northern Ireland, where those courts have given a decision on the meaning of a statutory provision applicable throughout the UK, it is “highly desirable [to] follow the previous decision and leave it to the Supreme Court to resolve the difficulties.”

• The CA therefore did not consider any further discussion necessary on the basis of a pending Supreme Court decision in a separate case (Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156) which concerns when the courts in England and Wales may depart from decisions of appellate courts in Scotland or Northern Ireland.
  

As the majority of the CA indicated that McMenemy was wrong, the CA gave leave to appeal to the Supreme Court to decide whether the correct test is the “sole” or “effective” cause test.

This case clarifies (for now) the approach the courts should take regarding part-time worker discrimination and the ultimate purpose behind the 2000 Regulations. However, the case leaves open the question of the extent to which courts in England and Wales should follow appellate court decisions of other UK jurisdictions, and it remains to be seen what the Supreme Court will decide on this issue.