Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations), part-time workers have the right not to be treated less favourably than comparable full-time workers, if the treatment is “on the ground” that they’re a part-time worker and the treatment cannot be objectively justified.
In a recent case, the Supreme Court answered a long-debated question: to succeed with a claim, does the sole reason for the less favourable treatment need to be that the worker is part-time, or is it sufficient that their part-time status was an effective cause of it?
What happened in this case?
The claimant was a part-time driver employed by Data Cars, who was charged a “circuit fee” of £148 per week to access the company’s booking system. This was a flat fee that had to be paid to Data Cars regardless of whether drivers were full or part time.
The claimant argued that this amounted to less favourable treatment because of his part-time status. Unlike full-time drivers, he couldn’t spread the circuit fee across more working hours, and so he had a higher per-hour cost.
The employment tribunal initially dismissed the claim. It held that although this did amount to less favourable treatment, the claimant’s part-time status was not the sole reason for the treatment (Data Cars needed to earn revenue from its business) and so the claim could not succeed.
On appeal, it was felt that the tribunal had considered the wrong test and that the correct test was whether the claimant’s part-time status was an “effective and predominant cause” for the treatment, even if not the only reason. However, the claimant’s appeals were dismissed because, in the absence of a Supreme Court judgment, the courts considered themselves bound by earlier decisions. The case was therefore appealed to the Supreme Court to resolve the issue.
What did the Supreme Court decide?
The Supreme Court allowed the claimant’s appeal. It held that the PTW Regulations prohibit less favourable treatment of part-time workers if their part-time status is an effective cause of the treatment, even if it’s not the only reason for it.
What does this mean for employers?
Effectively, the decision brings the causation test for part-time worker discrimination in line with other discrimination claims. Given that it’s a Supreme Court judgment, it’s binding on all lower courts and employment tribunals in the UK.
It’s likely to be easier for part-time workers to succeed in future claims, given that it will be easier to show that part-time status was one reason for any less favourable treatment, rather than the only reason.
Consequently, whether an employer can objectively justify the less favourable treatment to defend the claim will be even more key. Helpfully, the Supreme Court confirmed that other reasons for the treatment are likely to be relevant in establishing a justification defence and in assessing compensation.
Now is therefore a good time for employers to audit their policies and practices (both formal and informal), to assess whether they create a disadvantage for part-time workers (even if, on the face of it, they appear neutral). This could include looking at pay and benefits, holiday and development opportunities.
If any disadvantage is identified, employers should consider whether steps can be taken to mitigate the less favourable treatment. If that’s not possible, employers should think carefully about whether such treatment is justified and proportionate, ensuring that the business reasons for any less favourable treatment are appropriately documented.
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