Part-time worker discrimination does not tend to generate the same attention as discrimination under the Equality Act 2010. But a recent Supreme Court judgment has clarified the level of protection available to part-time workers – confirming that protection in this area is just as wide as other areas of discrimination.
In Augustine v Data Cars Ltd, the Supreme Court has confirmed that part-time status does not need to be the sole reason for less favourable treatment (as had previously been held to be the case by the Inner House of the Court of Session in Scotland in the case of McMenemy v Capita Business Services). It is enough that it is an effective cause.
The facts of Augustine
Mr Augustine was a private hire driver who worked an average of 34.8 hours a week. His chosen full-time comparator worked more than 90 hours.
Data Cars charged all drivers the same fixed weekly fee of £148 for access to its booking system, regardless of how many hours they worked. On the face of it, everyone was treated identically. In practice, however, the fee represented a greater cost per hour for Mr Augustine, meaning he took home proportionately less than his full-time comparator.
That was enough to amount to less favourable treatment. The harder question was whether it was because he worked part-time.
How does the protection work?
Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a part-time worker has the right not to be treated less favourably than a comparable full-time worker as regards to contractual terms or by being subjected to another detriment.
There are some important differences from familiar Equality Act discrimination claims. Generally, the worker needs an actual comparable full-time worker, rather than a hypothetical comparator. The comparator must work for the same employer under the same type of contract and do the same or broadly similar work. The Regulations also expressly require the pro rata principle to be applied unless inappropriate. A claim can be defended if the treatment is objectively justified.
Protection can extend to matters including pay, contractual sick pay, pensions, training and annual leave. Crucially, however, less favourable treatment must be ‘on the ground that’ the worker is part-time, and this was the issue that reached the Supreme Court.
Part-time status need only be an effective cause
Previous authority had been understood as requiring part-time status to be the sole reason for the treatment. The Supreme Court has now rejected that approach.
The words ‘on the ground that’ use a familiar discrimination law causation test. Part-time status need only be a significant or effective cause of the treatment. There may be other reasons operating alongside it.
That matters. An employer cannot necessarily defeat a claim simply by pointing to some additional business reason for the arrangement.
It does not, however, follow that every difference affecting part-time workers will be unlawful. Unlike most forms of direct discrimination under the Equality Act, less favourable treatment under the Part-Time Workers Regulations can be objectively justified. Other reasons for the treatment may therefore become highly relevant at that stage.
What should HR take from Augustine?
The practical lesson is to look beyond whether a policy applies equally on paper.
A fixed fee, qualification threshold or benefit may apply identically to full-time and part-time staff but produce a materially different outcome for part-time workers because of the hours they work. Following Augustine, the fact that part-time status is only one reason for that disadvantage will not necessarily prevent a claim.
When reviewing terms and benefits, the safer question is therefore not simply “do we treat everyone the same?”, but “does this arrangement leave part-time workers worse off because they work fewer hours and, if so, can we objectively justify it?”.