Discrimination of part-time worker

In the case of Augustine v Data Cars Ltd, Mr Augustine was a part-time private hire driver for a taxi firm. He paid a ‘circuit fee’ of £148 per week which was applied to all drivers.

Less favourable treatment

Mr Augustine brought a claim within the employment tribunal (ET) on the basis that the circuit fee was contrary to regulation 5 of The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, namely the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker. He argued that by imposing a flat rate circuit fee, he had been treated less favourably as compared with his full-time comparator. The ET rejected the claim as he had failed to establish that he had been treated less favourably than a comparable full-time worker as they both had to pay the fee. They further held the claim would fail in any event because the treatment was not solely on the ground that Mr Augustine worked part-time. Mr Augustine appealed.

Employment appeal tribunal (EAT)

The EAT found that the ET had erred in its approach to the question of less favourable treatment, failing to take into account that, applying the pro rata temporis principle, Mr Augustine was paying a higher circuit fee when considered as a proportion of his hours, and/or that he was taking home a lower hourly rate of pay once the circuit fee had been deducted. The EAT also found the alternative basis proposed by the ET was also flawed, ‘as it had erroneously had regard to what it found to be an absence of intention by the employer to treat Mr Augustine less favourably because he worked part-time, that was irrelevant’. The relevant test would be whether his part-time status was the effective cause, not the sole cause.

The case has been sent back to the ET for reconsideration.

Need support with your HR?

Our support means you can focus on education, while we take care of your organisation’s HR needs.

Our core membership service is designed to meet your school’s day-to-day human resource needs, all for a fixed fee. Get in touch for a free consultation about how we can help you.

The flexible working section of our CEFMi website contains model policies and related model letters and forms. Get a free trial of CEFMi – a comprehensive resource for school managers containing over 7,000 pages of text, including over 170 policies written specifically for schools.