Key Facts
- •Mr Augustine (claimant) was a part-time private hire driver employed by Data Cars Ltd (respondent).
- •He paid a weekly £148 circuit fee for access to the respondent's booking system, a flat rate applied to all drivers regardless of hours worked.
- •The Employment Tribunal (ET) found him a part-time worker but dismissed his claim of less favourable treatment under the Part-Time Workers Regulations 2000 (PTWR).
- •The ET reasoned that there was no less favourable treatment because all drivers were treated the same; alternatively, even if there was less favourable treatment, it wasn't solely because he was part-time.
- •The claimant appealed to the Employment Appeal Tribunal (EAT).
Legal Principles
Pro rata principle in determining less favourable treatment under PTWR.
Regulation 5(3) PTWR, Part-Time Worker Directive 97/81, clause 4.2 Framework Agreement
Less favourable treatment assessment considers context and proportion, not just identical treatment.
Earl Shilton Town Council v Miller [2023] EAT 5, British Airways plc v Pinaud UKEAT/0291/16, [2018] EWCA Civ 2427
Causation under PTWR: 'on the ground that' requires part-time status to be the effective cause, not necessarily the sole cause.
Sharma v Manchester City Council [2008] ICR 623, Carl v University of Sheffield [2009] ICR 1286, O’Neill v Governors of St Thomas More [1997] ICR 33
Employer's intention is irrelevant to causation; focus is on the reason for the treatment.
R (oao E) v Governing Body of JFS and ors [2009] UKSC 15
The EAT is not strictly bound by Court of Session (Inner House) decisions but should generally follow them due to its Britain-wide jurisdiction.
McMenemy v Capita Business Services Ltd [2007] CSIH 25, Marshalls Clay Products Ltd v Caulfield [2004] ICR 436, Airbus UK Ltd v Webb [2007] ICR 956
Outcomes
Appeal allowed in part.
The ET erred in its approach to less favourable treatment by failing to consider the pro rata principle in relation to the circuit fee as a proportion of hours worked or pay. The ET also wrongly considered the respondent's intention regarding causation.
Remittal to the ET not required.
Given the EAT's conclusion that the less favourable treatment must be solely on the grounds of part-time status, the claim under regulation 5 PTWR would fail even on remittal.