W Augustine v Data Cars Ltd

Contents:

This appeal concerns two issues relating to claims made under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”): (1) as to the correct approach to determining whether there has been less favourable treatment; (2) in respect of the approach to causation, whether this must be established solely on the basis that the complainant was a part-time worker and the relevance of the employer’s intention. The questions relating to causation ((2)), require us to consider apparently conflicting decisions from the EAT and the Court of Session (Inner House).

In giving our judgment on this appeal, we refer to the parties as the claimant and respondent, as below. This is our unanimous decision on the claimant’s appeal against the reserved judgment of the London South Employment Tribunal (Employment Judge Siddall, sitting alone on 10 January 2022) (“the ET”), sent out on 31 January 2022, by which the claimant’s claim of less favourable treatment under the PTWR was dismissed.

Initially considering this matter on the papers, His Honour Judge Auerbach was unable to see that it raised any arguable question of law; subsequently, after a hearing under rule 3(10) EAT Rules 1993, His Honour Judge Tayler permitted the appeal to proceed on amended grounds, as presented by counsel acting under ELAAS at that hearing.

The claimant previously acted in person but has had the benefit of advice and representation from Mr Jones KC, acting pro bono, at and since the rule 3(10) hearing. The respondent appeared by counsel before the ET but has been represented by its director, Mr Chapman, on this appeal.

The claimant was a private hire driver who (as the ET had previously found) was an employee of the respondent. The claimant had paid the respondent a ‘circuit fee’ of £148 per week. The circuit fee gave drivers access to the respondent’s booking system; it was applied in the same sum to all drivers, irrespective of whether they were full or part-time. By his claim to the ET, the claimant contended that the circuit fee was contrary to regulation 5 PTWR.

At the ET hearing, the respondent (through its counsel) indicated that, if the ET were to find the claimant had been less favourably treated on the ground that he was a part-time worker, it would not argue that the treatment was justified (ET, paragraph 5). In the claimant’s case, it was accepted that he worked an average of 34.8 hours a week. Having regard to custom and practice within the respondent’s workforce (where drivers worked a wide variety of hours, with the average worked being 43.17), the ET found that the claimant was a part-time worker (ET, paragraph 38). The claimant’s comparator worked an average of over 90 hours a week.

The ET went on to dismiss the claimant’s claim, holding: (1) that he was not less favourably treated as regards the terms of his contract; alternatively, (2) that he was not less favourably treated on the ground that he was a part-time worker. The ET summarised its reasoning as follows:

“67.

In conclusion, my decision is as follows. I find that the Claimant has not established that he was treated less favourably than a comparable full-time worker … as they were both treated in exactly the same way. If I am wrong on that and if the Claimant can establish less favourable treatment on the basis that he was taking home a lower proportion of his salary, I find that in any event the charging of the circuit fee was not on the sole ground that he was a part-time worker. The claim under regulation 5 therefore fails.”

By his appeal, the claimant contends that the ET’s conclusions are founded upon two errors of law: (1) in deciding there was no less favourable treatment, the ET erroneously failed to take account of the fact that he was paying a higher circuit fee when considered as a proportion of his hours worked and/or pay; (2) in determining (in the alternative) that any less favourable treatment was not on the ground that the claimant was a part-time worker, the ET wrongly applied the test identified in McMenemy v Capita Business Services Ltd [2007] CSIH 25, [2007] IRLR 400, which stated that part-time status must be the sole cause of the treatment and that an examination of the employer’s intention was required, rather than asking (per (e.g.) Carl v University of Sheffield [2009] ICR 1286 EAT) what was the effective cause of the treatment, understanding that the employer’s intention was not determinative.

The PTWR were introduced to comply with the United Kingdom’s obligation to implement the Part-Time Worker Directive 97/81 (“the PTWD”), an obligation that was extended to the UK by Council Directive 98/23/EC.

The PTWD was intended to implement the Framework Agreement on part-time work (“the Framework Agreement”) which was annexed to it. In the Preamble to the Framework Agreement it is explained that:

At clause 1, the purpose of the Framework Agreement is stated to be two-fold, as follows:

By clause 4 of the Framework Agreement, it is (relevantly) provided:

“Clause 4: Principle of non-discrimination

1.

In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.

2.

Where appropriate, the principle of pro rata temporis shall apply.”

Clause 6 addresses implementation of the Framework Agreement, making clear that:

The PTWR were made under section 19 of the Employment Relations Act 1999, which does not itself refer to the PTWD, but confers a broad enabling power on the Secretary of State to:

By regulation 5 PTWR, it is provided as follows:

“5.— Less favourable treatment of part-time workers

(1)

A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker– (a)  as regards the terms of his contract; or (b)  by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2)

The right conferred by paragraph (1) applies only if– (a)  the treatment is on the ground that the worker is a part-time worker, and (b)  the treatment is not justified on objective grounds.

(3)

In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.

(4)

A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.”

The “pro rata principle” referenced at regulation 5(3) is defined at regulation 1(2):

““pro rata principle” means that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker.”

The term “weekly hours” is then defined at regulation 1(3):

“In the definition of the pro rata principle … “weekly hours” means the number of hours a worker is required to work under his contract of employment in a week in which he has no absence from work and does not work any overtime or, where the number of such hours varies according to a cycle, the average number of such hours.”

Where an ET finds that a complaint under the PTWR is well founded, it may (if it considers it just and equitable) order the employer to pay compensation to the claimant (regulation 8(7)). By regulation 8(9), it is then provided that:

The ET started from the position that all drivers were in the same position: all would have to work a certain number of hours and complete a certain number of jobs to cover the circuit fee; that number would vary according to the type of work, but drivers would have to work at least 30 hours a week to ensure the job was worthwhile and they could pay the circuit fee the following week (ET, paragraphs 43-49). From this perspective, as the claimant worked on average an average of over 34 hours a week and would thus be able to cover the circuit fee, the ET found there was no differential treatment between the claimant and his comparator.

Considering, however, the claimant’s argument that there was less favourable treatment if a pro rata approach was adopted, the ET accepted that:

By his first ground of challenge, the claimant contends that the ET erred in finding there was no less favourable treatment because all drivers were treated in the same way; he submits the ET thereby failed to take account of the relevant context (see, by analogy, Earl Shilton Town Council v Miller [2023] EAT 5), which required that it assess the question of less favourable treatment by having regard to time and proportion (see British Airways plc v Pinaud UKEAT/0291/16, and [2018] EWCA Civ 2427). Whether analysed as a proportion of hours worked, or as a proportion of pay, it was clear (as the ET had found at paragraphs 55 and 56) that the claimant was treated less favourably.

Seen as a proportion of pay, the pro rata principle (per regulation 5(3) PTWR) would require a proportionate adjustment to the claimant’s pay or other benefit: applying that principle, a flat circuit fee of £148 per week would result in part-time drivers forgoing a higher proportion of their earnings than full-time drivers, effectively reducing their pay per hour worked (albeit that other differences might then need to be taken into account in any award of compensation, again applying the pro rata principle). More straightforwardly, however, if seen in terms of a comparison of hours worked, it was clear the claimant was paying a higher fee as a proportion of hours worked than his comparator. Assessed in this way, the pro rata principle as defined by regulation 1(2) (limited to “pay or any other benefit”) would not come into play, but that was not fatal: (i) there was nothing in the PTWR to suggest that proportionate adjustments could not, if appropriate, be made in other contexts; (ii) construing the PTWR consistently with the PTWD (clause 4.2 Framework Agreement) would require such an approach; and (iii) the EAT and Court of Appeal had so held in Pinaud, which was binding on this EAT.

The respondent says, however, that the circuit fee could be covered by a driver in a few hours (or, on occasion, by a single booking); it would depend upon the type of work undertaken: some hours are more lucrative to work than others; some types of work – e.g. airport bookings – are known to be more profitable; some more experienced drivers could earn more than others because of their knowledge of London and the local area. Moreover, the claimant could choose when to log in; if he opted to work at times when it was harder to cover the circuit fee, that was his choice.

The question posed by regulation 5(1) PTWR is whether, (relevantly) as regards the terms of his contact, the part-time worker has been treated less favourably than a comparable full-time worker. In order to answer that question, however, it is necessary to understand what constitutes the treatment about which the part-time worker is complaining.

In Earl Shilton Town Council v Miller [2023] EAT 5, the question was whether providing female employees access to the same toilet facilities as their male colleagues amounted to less favourable treatment because of sex. As the EAT (His Honour Judge James Tayler sitting alone) observed:

Considering the authorities relating to direct discrimination under the Equality Act 2010 (“the EqA”) the EAT in Earl Shilton continued:

Direct discrimination under the EqA is defined by section 13 as follows:

There is not a precise read-across from the protection thus afforded under the EqA to that provided by regulation 5 of the PTWR; on the other hand, the basic principle is the same: the protection is against less favourable treatment of one worker with a specified characteristic (here, being a part-time worker) as compared to another who does not have that characteristic (someone who works full-time). To ensure a like-for-like comparison, the circumstances of the complainant and the comparator should – other than the fact that they work part-time or full-time – be the same. To determine whether the requirement to pay the weekly £148 circuit fee amounted to less favourable treatment, however, it is necessary to understand what constitutes the treatment complained of. The claimant’s complaint was not that the respondent imposed a circuit fee on all drivers (full- and part-time), but, taking his case at its most straightforward, that the imposition of a flat rate charge, which took no account of his reduced working hours, meant he was paying a higher fee than his comparator if assessed as a proportion of hours worked. The other way of characterising the claimant’s complaint would be to see the payment of the fee in terms of his hourly take-home rate of pay as compared to that of his comparator: as a driver worked more hours during the course of the week, there would be a corresponding reduction in the proportion of the earnings needed to cover the charge, and, conversely, the driver’s hourly take home rate would increase. As such, imposing a flat rate circuit fee would mean that the claimant (as a part-time driver, working an average of 34.8 hours a week) would forgo a higher proportion of his earnings than his full-time comparator (working an average of over 90 hours a week), resulting in a lower hourly take home rate of pay.

Thus analysed as a proportion of pay, the pro rata principle (as defined by regulation 1(2) PTWR) would apply to this case. As the ET found, the fee would represent a greater proportion of fares earned by a part-time driver who was working (say) 30 hours a week than a full-time driver who was working (for comparison) 60 hours a week or more (ET, paragraph 55), and, as such, given that the drivers would be paying the circuit fee out of their earnings, the part-time driver’s pay would be reduced by a greater proportion than would arise from a simple pro rata reduction based on a comparison of the drivers’ respective weekly hours. As the ET accepted, applying the pro rata principle, the circuit fee amounted to less favourable treatment of the claimant as compared to his full-time comparator.

That said, as Mr Jones KC acknowledged in oral argument, a comparative assessment of pay for these purposes would also have to take into account other factors giving rise to a difference between the hourly rates of the claimant and his comparator. These might include the kind of points identified by Mr Chapman in his submissions on behalf of the respondent, although we should record the claimant’s objection, that these were not matters determined by the ET, and we do not read Mr Jones’ engagement with these points as amounting to any form of concession; he has simply acknowledged, on a hypothetical basis, that calculating a driver’s hourly rate of pay may have to take into account a number of variables. As we read regulation 8(9) PTWR, that would be an assessment that might be undertaken in the calculation of any compensatory award (where the pro rata principle would again apply), but we can see that this is a less straightforward approach than simply looking at the amount of the circuit fee assessed as a proportion of hours worked.

Adopting the latter approach, the difficulty for the claimant might seem to be that the definition of the pro rata principle under regulation 1(2) PTWR would not readily apply to this analysis (although we note that, in a case concerned with what was said to be a disproportionate requirement to work standby (as opposed to rostered) hours, it was not in dispute that the pro rata principle was offended; see paragraph 2 Gibson v The Scottish Ambulance Service UKEAT/0052/04); we do not, however, consider that presents a valid objection to the claimant’s case. First, because we do not read the language of PTWR as precluding an approach that has regard to the treatment in issue as assessed as a proportion of hours worked; indeed, that seems to us to be an approach that will often be required when seeking to undertake a like-for-like comparison of the treatment of full- and part-time workers. Second, because construing the PTWR consistently with the PTWD would require an approach that allowed for the application of the pro rata temporis principle (broadly speaking, at a rate in proportion to time), per clause 4.2 of the Framework Agreement. Third, because we consider this to be the approach laid down in case-law that we are bound to follow.

In British Airways plc v Pinaud UKEAT/0291/16, it was common ground that the pro rata principle, as defined by regulation 1(2) did not apply (paragraph 19); as the EAT (His Honour Judge David Richardson sitting alone) explained, the treatment in that case concerned the term of the claimant’s contract relating to the days she was required to be available to work, it did not dictate any particular number of weekly hours (paragraph 37). The EAT considered, however, that a pro rata assessment provided the only rational basis for comparing the treatment of part-time workers to that of full-time workers in terms of the requirement that the former should be available for work for 3.5% more days than the latter for (proportionately) the same pay; as HHJ Richardson observed:

Dismissing the employer’s appeal in British Airways plc v Pinaud [2018] EWCA Civ 2427, [2019] ICR 487, the Court of Appeal adopted the same approach; as Bean LJ reasoned:

We respectfully agree with the approach adopted in Pinaud. Given our reasoning in respect of the need to adopt a pro rata analysis in this case - whether as that term is understood under regulation 1(2) PTWR, or whether adopting an analysis in proportion to the time involved, consistent with the PTWD - to the extent that the ET found that the circuit fee did not constitute less favourable treatment of the claimant, we uphold this ground of appeal.

In its alternative reasoning, the ET went on to consider whether, if the requirement to pay the circuit fee amounted to less favourable treatment, what was “on the ground that” the claimant was a part-time worker. Following the approach laid down in McMenemy v Capita Business Services Ltd [2007] CSIH 25, [2007] IRLR 400, the ET considered that it was required to consider:

Consistent with that approach, the ET went on to set out its conclusions in this regard, as follows:

By his second ground of challenge, the claimant contends that the ET erred in applying the test laid down by the Court of Session (Inner House) in McMenemy, which stated that part-time status must be the sole cause of the treatment and that an examination of the employer’s intention was required. It is the claimant’s case that McMenemy (approving an earlier decision of the EAT sitting in Edinburgh, in Gibson v The Scottish Ambulance Service UKEAT/0052/04), had incorrectly held that the PTWR required that part-time work be the sole cause of the less favourable treatment, when that was: (i) not what regulation 5(2)(a) PTWR said; (ii) not consistent with a purposive construction of the PTWR, not least as the PTWD made clear that the Framework Agreement set minimum (not maximum) standards; (iii) not required by the principles of construction applicable to the PTWR; (iv) not the approach adopted by the EAT sitting in London in Sharma v Manchester City Council [2008] ICR 623 and Carl v University of Sheffield [2009] ICR 1286, where the test had been said to be one of “effective cause”, consistent with the approach to causation in other (analogous) statutes. Acknowledging the different views expressed by the Courts on this question, often absent full citation of all other relevant authorities, Mr Jones contended we were not strictly bound by any previous decision on the point (decisions of the Court of Session (Inner House) not being binding on the EAT when considering an appeal from an ET in England and Wales).

The claimant further contended that the ET had erred in adopting the McMenemy focus on the employer’s intention: while the reasoning in McMenemy and Gibson might have reflected an uncertainty at that time as to whether causation was to be approached applying a “but for” test or an assessment of the subjective motivation of the decision-taker, it had also erroneously focused on the motive or intention for the treatment in question (irrelevant), rather than on what caused that treatment (R (oao E) v Governing Body of JFS and ors [2009] UKSC 15). The ET’s reasoning at paragraphs 63-66 looked at the respondent’s motives, but (at most) those matters could only go to justification (not an issue in this case), not causation.

Mr Chapman did not address us on the legal issues raised by the authorities to which Mr Jones had referred, save to point out the factual differences between those cases and this. In broad terms, it is the respondent’s case that any less favourable treatment experienced by the claimant arose from choices he had made and need not have had any connection with part-time working as a driver who logs in for fewer hours might nevertheless accept more lucrative jobs.

The phrase “on the ground that”, used at regulation 5(2)(a) PTWR, has been considered in a number of cases, although, unfortunately, appellate decisions have often been made without reference to all relevant authorities.

The first relevant appellate ruling would seem to be that of the EAT sitting in Edinburgh (Lord Johnston presiding) in Gibson v The Scottish Ambulance Service UKEAT/0052/04. In that case, the treatment in issue concerned a requirement on the claimant to work a higher proportion of standby to rostered hours than his full-time comparator. Accepting that this had amounted to less favourable treatment, partly related to the claimant’s part-time status, the ET (by a majority) concluded that the primary reason for the treatment related to other factors; as such, construing the PTWR consistently with the PTWD (where the reason for the treatment must be “solely” the worker’s part-time status, per clause 4.1 Framework Agreement), the ET majority found that the necessary causal link had not been established. On his appeal against that decision, the claimant does not, however, seem to have addressed the question whether his part-time status needed to be the sole reason for the treatment; the focus of his submissions was on the question whether the ET had erred in failing to apply an objective “but for” test. The respondent resisted that argument, contending the approach was that laid down (in the discrimination law context) by the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, and required a focus on the subjective reason for the treatment in issue. It further submitted, however, that the ET majority had correctly required that part-time status must be the sole reason for the impugned treatment, as that was the approach adopted in the PTWD.

By a majority (which included Lord Johnston), the EAT can be seen to have agreed with the submission for the respondent, reasoning as follows:

We pause in our consideration of the case-law at this stage to observe that a large part of the discussion in Gibson - that relating to whether the correct approach to causation required a “but for” test or a consideration of the subjective reasons of the relevant decision-taker - can be seen as reflective of the developing jurisprudence in discrimination law at that time. A “but for” approach had been adopted in James v Eastleigh Borough Council [1990] 2 AC 751, HL, where the discriminatory reason for the treatment complained of was inherent in the treatment itself and, as such, no further inquiry was needed. In Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, the House of Lords had made clear that the test required determination of the alleged discriminator’s (conscious or unconscious) reason for the treatment in issue. As Underhill P (as he then was) explained in Amnesty International v Ahmed [2009] ICR 1450 EAT, what appeared to be a difference in approach was merely reflective of the different nature of the cases; ultimately the question was always:

In determining the reason for the treatment in issue, in circumstances in which the discriminatory reason is not inherent in that treatment, it will be necessary to have regard to the mental processes of the relevant decision-taker, although a distinction should still be made between motive and reason; as Underhill P observed in Amnesty International:

We return to the distinction between motive and reason below. We now, however, turn to the next appellate consideration of the “on the ground that” requirement under regulation 5(2)(a) PTWR. In McMenemy v Capita Business Services Ltd [2007] CSIH 25, [2007] IRLR 400, the focus of the argument before the Court of Session (Inner House) was more clearly on the question whether part-time worker status must be the sole reason for the treatment in issue. In that case, the complaint of less favourable treatment related to the fact that Mr McMenemy, who worked part-time in the respondent’s Glasgow call-centre Wednesday - Friday each week, was not given time-off in lieu when public holidays fell on Mondays, notwithstanding that full-time colleagues, who normally worked on Mondays, would be given the day off (albeit that - as the call-centre operated seven days a week - some full-time workers, working (e.g.) Tuesday - Saturday, would similarly lose out, whereas some part-time workers, working (e.g.) Monday to Wednesday, would not). Mr McMenemy would be given time-off if a public holiday fell on one of his working days but complained of suffering less favourable treatment because of the disproportionate loss of time-off for public holidays given the number that fell on Mondays.

The ET had not considered that this amounted to less favourable treatment on the ground that Mr McMenemy worked part-time, concluding that the distinction was:

The EAT rejected Mr McMenemy’s appeal, holding that the ET had reached a conclusion that had been open to it on the facts. The Court of Session (Inner House) agreed.

In reaching its decision, the Inner House first considered different translations of the word “solely” in the PTWD; doing so, it was satisfied that this only reinforced the impression gained from a straightforward reading of the English version:

As for the approach it was to adopt when construing the PTWR, the Inner House recorded that it was agreed between the parties that:

Having thus agreed the approach that should be taken to the construction of the PTWR, the dispute between the parties was focused on the implication of the inclusion of the word “solely” in clause 4.1 of the Framework Agreement. On this question the Inner House reasoned as follows:

In reaching this view, the Inner House also made reference to the decision of the European Court of Justice in Wippel v Peek & Cloppenburg GmbH & Co KG Case C-313/02 [2004] ECR I-9483, in which it had been observed that clause 4 of the Framework Agreement:

Asking whether the less favourable treatment suffered by Mr McMenemy was solely because he was a part-time worker, the Inner House reiterated its view that this:

The way in which the question of causation is to be approached under the PTWR next arose for consideration in Sharma and ors v Manchester City Council [2008] ICR 623, a decision of the EAT sitting in London (Elias P (as he then was) presiding). In that case, the claimants were part-time lecturers who, in contrast to their full-time comparators, were employed under contracts which could be varied from year to year. The ET had rejected the claims under the PTWR on the basis that, as the particular provision in issue did not apply to all part-time workers, the reason for the less favourable treatment was not “solely” due to the claimants’ part-time status. Allowing the claimants’ appeal, the EAT held that the ET had erred in its construction of the PTWR in this regard. In reaching this conclusion, the EAT noted that this had been an argument taken by counsel for the respondent in Gibson and that the EAT in that case, while not directly approving the submission, had appeared to agree with it, albeit that it had “hardly given a ringing endorsement of the construction” (Sharma, paragraphs 31 and 47). Considering the use of this term in the PTWD, the EAT in Sharma reasoned as follows:

On that basis, the EAT upheld the claimants’ appeal. In any event, however, it considered that the ET had been wrong to characterise the less favourable treatment in that case as being for more than one reason:

Finally, the EAT went on to observe:

The decision of the Court of Session (Inner House) in McMenemy does not appear to have been referenced in Sharma (it is not referred to in the EAT’s judgment). It was, however, before the EAT sitting in London (His Honour Judge Peter Clark presiding) in Carl v University of Sheffield [2009] ICR 1286, when (with both sides being represented by counsel) all the authorities we have referenced above were fully considered in argument. The EAT in Carl agreed with Elias P’s observation that it had been open to the UK to give more favourable protection than afforded by the PTWD and that, therefore, the limitation that the EAT in Gibson had been persuaded to read into the PTWR was unnecessary. Considering that it was not bound by any of the previous cases cited, the EAT reasoned as follows:

These observations were, however, strictly obiter. In Carl, a further point arose for consideration, relating to whether it was possible for the claimant to rely on a hypothetical comparator under the PTWR. The EAT held that she could not, and duly allowed the employer’s cross-appeal on that basis.

So far as we have been able to discern, the phrase “on the ground that”, used at regulation 5(2)(a) PTWR, was next considered, again by the EAT sitting in London (HHJ Richardson sitting alone), in Engel v Ministry of Justice [2017] ICR 277. It would not appear that any of the preceding authorities we have referenced were referred to in Engel, although the question of causation arose in relation to Mr Engel’s argument that the ET had wrongly rejected his claim on the basis that the respondent had demonstrated the existence of a non-discriminatory reason for the treatment in issue. In rejecting Mr Engel’s submission that regulation 5(2)(a) PTWR must never be construed in a way such as to defeat a claim under regulation 5(1), HHJ Richardson observed:

At least some of the decisions relating to causation under regulation 5 PTWR were referenced in Ministry of Justice v Blackford [2017] ICR 277, a decision of the EAT sitting in London (Lady Wise sitting alone). Noting that there appeared to be a direct conflict between the approach in Carl and that adopted in McMenemy and Engel, Lady Wise did not, however, consider it necessary to express a view on which approach was correct as this was ultimately not an issue on the appeal before her (Blackford, paragraph 73).

The next, and (so far as we are aware) most recent judicial consideration of the question of causation under the PTWR, appears to have been in Forth Valley Health Board v Campbell UKEATS/0003/21. Mr Campbell was a part-time phlebotomist who complained of less favourable treatment in that, when he worked on weekdays, his shifts were four-hours long with no breaks, whereas full-timers were given a 15 minute paid break when they worked past six hours on their weekday shifts. Although Mr Campbell also had a paid 15 minute break on his (six hour) weekend shifts, he was successful before the ET in claiming that his treatment on weekdays amounted to less favourable treatment for the purposes of regulation 5 PTWR.

Upon the employer’s appeal to the EAT (sitting in Edinburgh; Lord Fairley sitting alone), it seems that reference was made to the decisions in Gibson and McMenemy but not to Sharma or Carl (certainly the latter two decisions are not referenced in the judgment). Unsurprisingly, Lord Fairley adopted the same approach as the Court in McMenemy, although he was clear that he would have reached the same conclusion had he adopted a less restrictive approach:

For the claimant in the present case, Mr Jones submits that we should not consider ourselves bound by any of the above authorities. He makes the point that, as we are considering an appeal from an ET within the jurisdiction of England and Wales, we are not bound by the decision of the Court of Session (Inner House) in McMenemy. As for earlier decisions of the EAT, acknowledging the guidance provided in British Gas Trading Ltd v Lock and anor [2016] ICR 503, he submits that, given the conflicting decisions reached by different compositions of this Tribunal, we are entitled to reach our own conclusion as to the correct approach.

We consider the approach we should take on the question of precedent below. Given, however, that the question of the correct approach to the “on the ground that” test under regulation 5(2)(a) PTWR is at the heart of the appeal before us, we think it appropriate, at this stage, to set out our view as to what that approach should be.

Starting with the language used at regulation 5(2) PTWR, we note that this makes clear that the right under regulation 5(1), not to be subjected to less favourable treatment, “applies only” if the treatment is (a) “on the ground that the worker is a part-time worker” and (b) is not objectively justified.

The phrase “on the ground that” will seem familiar to those working in the fields of employment and discrimination law; a very similar phrase (“on the ground of”) was (for example) part of the definition of direct discrimination under section 1(1) of the legacy statute, the Sex Discrimination Act 1975; the words “on the ground that” remain a standard part of the test applied in detriment cases under the Employment Rights Act 1996 (see, for example, the right in respect of protected disclosures, at section 47B). Equally familiar will be the approach that has been adopted to this phrase in those other contexts.

Thus, in O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School [1997] ICR 33 EAT (Mummery P (as he then was) presiding), it was made clear that the question of causation “on the ground of [the claimant’s] sex” was to be answered according to what were said to be “well established and uncontroversial legal principles”, as follows (citing guidance provided by the Court of Appeal in Banque Bruxelles Lambert S.A. v Eagle Star Insurance Co Ltd [1995] QB 375, at p 406):

Similarly, in Fecitt and ors v NHS Manchester [2011] EWCA Civ 1190, [2012] ICR 372, considering the requirement that, for the purposes of section 47B Employment Rights Act 1996, the detriment must be “on the ground that” the worker had made a protected disclosure, it was held that:

If we were approaching regulation 5 PTWR absent any prior judicial consideration, we would not hesitate to adopt the same approach. To require that the complainant’s status as a part-time worker be an effective cause of the less favourable treatment, even if not the sole cause of that treatment, seems to us to be entirely consistent both with the language of regulation 5(2) and with the protective purpose of the legislation. To hold otherwise would seem to us to be inconsistent with the approach standardly taken to questions of causation (see per Mummery P in O’Neill), and to risk the obviously perverse outcomes hypothesised by Elias P at paragraph 49 of Sharma.

In setting out our view in this regard, we recognise that the PTWR were intended to ensure the UK’s compliance with the PTWD, and that we should therefore approach questions of construction, as far as possible:

First, because we note that the Framework Agreement is expressly stated to set out “minimum requirements”. As such, we are clear that it sets a floor, not a ceiling, for the protections to be afforded to part-time workers, and allows that a member state might provide for a more favourable protection than under the PTWD. Thus, if the PTWR, introduced pursuant to the broad enabling power conferred by section 19 Employment Relations Act 1999 (which made no reference to the PTWD), provides for a wider approach to the question of causation than that specified under clause 4.1 of the Framework Agreement, we do not consider there is any requirement to reduce that protection (and see Sharma at paragraph 53).

Second, and in any event, we consider our construction of regulation 5(2) PTWR to be entirely consistent with the purpose of the Framework Agreement, in particular:

On our analysis, therefore, the correct approach to the phrase “on the ground that” under regulation 5(2)(a) PTWR is as identified in Sharma and Carl: part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause.

In reaching this view, we recognise that we would be departing from earlier EAT decisions in Gibson, Engel, and Forth Valley, and our approach would run counter to that of the Court of Session (Inner House) in McMenemy. At this stage, however, we are explaining our view on the assumption that those decisions are not binding upon us; as such, we are unable to see any basis for inserting the word “solely” (per Gibson, McMenemy and Forth Valley) or the phrase “if and only if” (per Engel) into regulation 5(2)(a) PTWR. Equally, acknowledging that clause 4.1 of the Framework Agreement includes the word “solely”, for the reasons provided in Sharma (and as we have explained above), we do not consider this gives rise to an obligation to construe domestic legislation as requiring that the protection afforded to part-time workers be limited to cases where the less favourable treatment is solely due to their status as such. Indeed, having regard to our collective practical experience of issues relating to part-time work, we are mindful that discrimination against part-timers will often take place because of factors associated with their part-time status; limiting the protection to less favourable treatment solely on the ground of part-time work risks excluding such cases, where the part-time nature of the work might be the effective, but not the sole, reason for that treatment. As that would seem counter to the purpose of the Framework Agreement, we share the view expressed at paragraph 49 of Sharma that it seems unlikely that this is how clause 4.1 ought to be construed. Even if we are wrong about that, however, we cannot see why that minimum requirement should limit a wider protection allowed under domestic law; in this regard, we consider that the concession recorded at paragraph 6 McMenemy was wrongly made. As for the additional reasons given for the McMenemy construction (cited at the end of paragraph 6 in that case), we are unable to see why any lack of reference to indirect discrimination in the PTWD, still less the inclusion of a justification defence, should be seen as supporting a narrow approach.

For completeness, to the extent that the ET considered the respondent’s intention to be a relevant consideration when determining causation (see, e.g., the ET at paragraph 60), we would also consider this to demonstrate an error in its approach. As has been made clear in the case-law, when determining the reason why the treatment in question occurred, the motive or intention of the relevant actor or decision-taker is not relevant (Amnesty International; JFS). Insofar as the reasoning of the EAT in Gibson (“it is necessary to look at the intention behind the decision ...”), or that of the Inner House in McMenemy (“This necessitates inquiry into the employer’s intention ...”), suggests that the employer’s intention or motive is a relevant factor, we would find that hard to reconcile with the approach that has been laid down in later cases.

Having explained our view as to the correct approach to regulation 5(2)(a) PTWR as if we were approaching our task without being bound by any prior judicial consideration, we now turn to consider the question of precedent.

We start by considering the position in relation to the decisions reached by other, earlier, compositions of the EAT. In this regard, we do not distinguish between the EAT sitting in London and the EAT sitting in Edinburgh; although the latter is sometimes mistakenly referred to as “the Scottish EAT”, the EAT is a single appellate court, with a jurisdiction that covers the entirety of Great Britain. Thus, as section 20(2) Employment Tribunals Act 1996 makes clear, although required to have a central office in London, the EAT:

Although a superior court of record (section 20(3) Employment Tribunals Act 1996), strictly speaking, the EAT is not bound by its own decisions. That said, the EAT will normally follow previous decisions made in this jurisdiction, even where the later division has doubts about the earlier ruling; as HHJ Peter Clark observed, in Duncombe and ors v Department for Education and Skills UKEAT/0433/07:

In British Gas Trading Ltd v Lock and anor [2016] ICR 503, the EAT (Singh J (as he then was) sitting alone) helpfully summarised the principles that will guide the EAT when invited to depart from an earlier decision in this jurisdiction:

Referring back to the earlier EAT decisions that have engaged with the question of causation under regulation 5 PTWR, we observe that it seems that the appeals in Forth Valley, Engel, and Sharma were all determined without consideration of prior relevant decisions (the EAT in Forth Valley considered McMenemy and Gibson, but not Engel, Carl or Sharma; it appears that none of these authorities were cited to the EAT in Engel; in Sharma, reference was made to Gibson but not to McMenemy). Although all prior relevant decisions were considered by the EAT in Carl, the observations made on the issue of causation were strictly obiter: the EAT went on to dismiss the appeal on the basis that there was no valid comparator. As for Gibson, the majority decision in that case was reached without being fully addressed on the issue with which we are most concerned (the submissions for Mr Gibson did not address the “solely on the ground that” point), and the reasoning provided cannot be said to amount to a “ringing endorsement” of the respondent’s argument on construction (see per Elias P, paragraph 47 Sharma). In these circumstances, and given that there are clearly two or more inconsistent decisions of the EAT (Lock, paragraph 75(2)), if we were only considering the jurisprudence of the EAT, we would see this as a case that clearly falls within the established exceptions identified in Lock.

A more difficult question arises, however, in relation to the decision in McMenemy. When (as here) we are considering an appeal from a decision of an ET in England, under the doctrine of precedent, decisions of higher courts in England and Wales will be binding upon us. As Mr Jones has observed, however, that is not true of decisions of higher level courts in other jurisdictions; as such, we are not strictly bound to follow the decision of the Court of Session (Inner House) in McMenemy. Not to follow a decision of the Inner House on a point relating to an employment law provision that applies throughout Great Britain can, however, give rise to unhelpful inconsistencies. Thus, in Marshalls Clay Products Ltd v Caulfield and ors [2004] ICR 436, the EAT sitting in London (Burton P presiding) declined to follow the decision of the Court of Session (Inner House) in MBS Structures Ltd v Munro [2004] ICR 430 on a point of construction relating to the Working Time Regulations 1998, causing some uncertainty as to whether an employer’s payment of “rolled up” holiday pay could be lawful. On the subsequent appeal to the Court of Appeal ([2004] EWCA Civ 422, [2004] ICR 1502), it was argued that the EAT had thereby erred as a matter of law; rejecting that submission, Laws LJ observed as follows:

Subsequently, in Airbus UK Ltd v Webb [2007] ICR 956 the EAT sitting in London (Elias P presiding) referred back to the observations of Law LJ in Marshall’s Clay, noting that:

Returning then to the decision in McMenemy, notwithstanding the view we have ourselves formed as to the approach we should adopt to the construction of regulation 5(2)(a) PTWR, we recognise the pragmatic good sense in following the decision of the Inner House in that case. The point can be made good by considering the position had this case come before us, sitting in Edinburgh, on appeal from a decision of an ET in Scotland. In such circumstances, no question would have arisen: we would have been bound to follow the decision of the Inner House in McMenemy.

Although the decision in McMenemy does not bind us as a matter of law, we consider there is a compelling case for not departing from what has been acknowledged to be good practice, whereby the EAT - which has a Britain-wide jurisdiction - should ordinarily follow relevant decisions of higher Courts within Great Britain, notwithstanding that the doctrine of precedent would not normally apply. Where, as here, the decision in question relates to a legislative protection that extends throughout Great Britain, and where there is no separate question as to the application of Scottish law, or the law of England and Wales, there is a legitimate public interest in consistency of approach. The fact that the issue raised by the present appeal has come before us by way of an appeal from an English ET is a matter of chance; as the case-law makes clear, this is an issue that has arisen (not infrequently) in cases both north and south of the England/Scotland border. In these circumstances, we consider that the appropriate course is to approach this appeal on the basis that the decision in McMenemy is binding upon us.

For completeness, we should make clear that we thus consider we are required to read regulation 5(2)(a) of the PTWR as providing that the less favourable treatment must be :

That, as we see it, is the ratio of the judgment of the Inner House, notwithstanding that, on the facts of the case, it might have been thought that the addition of the word “solely” was unnecessary: the reason for the less favourable treatment was unrelated to the fact that Mr McMenemy worked part-time, it purely arose from the fact that he did not work on Mondays.

We now return to the decision in the present case, and the ET’s alternative reasoning, postulated on the basis that the claimant had established that he had been treated less favourably than his full-time comparator by the imposition of a flat rate circuit fee of £148 per week.

To the extent that the ET’s decision was based upon what it found to be the respondent’s intention - or, more accurately, lack of intention (“‘... did they intend to treat him less favourably for the sole reason that he was a part-time worker?’ Based upon the evidence presented I find that this claim is not made out. ...”) - we consider that gave rise to an error of law. Acknowledging that this might seem to be the approach laid down by the Inner House in McMenemy, we consider that the later case-law, which includes decisions of the Supreme Court, such as that in JFS, makes clear that this would be wrong: the relevant question for the ET was to ask what was the respondent’s reason for imposing a flat rate circuit fee, not whether it was intended to thereby treat part-time workers less favourably.

On that basis, we would, in part, uphold the claimant’s second ground of appeal: the ET erred in law because its decision on the question of causation was informed by what it found to be the respondent’s intention.

We cannot, however, agree that the claimant’s appeal (and his claim under regulation 5 PTWR) must therefore be upheld. Asking whether the charging of the flat rate circuit fee was on the sole ground that the claimant was a part-time worker, we are unable to say that the ET would have been bound to find that was the case (and we note that Mr Jones did not seek to put his case that high). As the ET found (and as Mr Chapman emphasised in his submissions to us), the respondent’s drivers (whether part-time or full-time) worked a wide range of hours. The less favourable treatment identified by the claimant arose from the failure to apply a fee that took into account hours worked. As such, it might be said that, at least in part, the claimant was treated less favourably because he worked part-time; but the same would also be true of many of the drivers who would be characterised as working full-time. Indeed, even if the claimant had not been part-time, but had worked above the average of 43.17 hours per week (which we understand to have been treated by the ET as the number of hours below which a driver would be treated as working part-time), when compared to his comparator (working an average of over 90 hours per week), the imposition of the flat rate circuit fee would still have meant that he was being treated less favourably.

For the reasons provided, we therefore uphold the claimant’s appeal on ground 1 and, in part, on ground 2 (to the extent that the ET’s decision took into account the respondent’s intention).

On the question of disposal, we have considered whether the issue of causation must now be remitted to the ET for re-hearing. On the ET’s findings in this case, however, if it is correct that the relevant test would require the less favourable treatment to have been on the sole ground that the claimant was a part-time worker, our preliminary view is that the only possible outcome would be that the claim under regulation 5 PTWR must fail. In such circumstances, we consider that it would be unnecessary to remit this matter for further consideration by the ET (see Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 920). We are, however, mindful that the parties have not had the opportunity to address us on the question of disposal in the light of our judgment. In these circumstances, we consider the appropriate course is to permit the parties to make any representations on the question of disposal, in writing (sent to the EAT and copied to the other party), within seven days of the handing down of this judgment. We also direct that any other consequential applications or representations relating to our final order determining this appeal should similarly be filed and served within the same period.