Mr Augustine was a private hire driver employed by Data Cars Ltd, working an average of 34.8 hours per week. All Data Car's drivers had to pay a weekly ‘circuit fee’ of £148, irrespective of whether they worked full or part-time. This gave them access to Data Cars' booking system. Mr Augustine bought a tribunal claim that the flat rate circuit fee was contrary to the Part-Time Workers Regulations, which provides that a part-time worker has the right not to be treated less favourably than a comparable full-time worker.

The tribunal rejected his claim. It found that there was not less favourable treatment because Data Cars had treated Mr Augustine and his full-time comparator in exactly the same way. They went on to hold that even if Mr Augustine could establish less favourable treatment the claim must fail as any less favourable treatment was not solely on the ground that Mr Augustine worked part-time.

Mr Augustine appealed to the EAT who allowed the appeal in part finding:

• the tribunal had taken the wrong approach to the question of less favourable treatment, by failing to applying the pro-rata principle.
• when applying the pro-rata principle, the imposition of a flat rate charge meant that Mr Augustine was paying a higher fee than his full-time comparator, whether assessed as a proportion of hours worked or as a proportion of earnings and/or that he would be taking home a lower hourly rate of pay.
• while less favourable treatment might be established in making a comparative assessment of other factors giving rise to a difference in pay, such as the type of work undertaken and the level of experience needed to be taken into account.
• the tribunal made a mistaken, irrelevant finding there had been an absence of intention by Data Cars to treat Mr Augustine less favourably.
• although the Part-Time Worker Regulations themselves state that the right not to be subjected to less favourable treatment applies ‘only if’ the treatment is ‘on the ground that the worker is a part-time worker’ (and is not objectively justified), an earlier decision of the Scottish Inner House of the Court of Session held that the part-time worker status was to be the sole reason for the treatment.
• without this Scottish decision the EAT would not hesitate to hold that a worker’s part-time status must be the effective and predominant cause of the less favourable treatment; and it need not be the only cause.
• there were strong reasons in favour of not departing from a relevant decision of a higher court in Great Britain. Applying the Scottish case, the tribunal had been correct that as the less favourable treatment was not solely on the ground that Mr Augustine was a part-time worker, his appeal failed.

What does this mean for employers?

This case provides helpful clarification of conflicting caselaw and establishes that in order to be successful in a claim, a part-time worker must establish that any less favourable treatment is solely on the ground they are a part-time worker. This means that where employers can show there are other relevant factors beyond a worker's part-time status a claim is likely to fail. This case is also a reminder that the test for less favourable treatment is not whether part-time workers and full-time workers are treated the same, but whether there is less favourable treatment once the pro rata principle is applied.

Augustine v Data Cars Ltd