Part-time discrimination: time for a shift? 

The Court of Appeal recently confirmed that part-time workers can only claim discrimination under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWRs) where their part-time status is the sole reason for the less favourable treatment by their employer, rather than merely an effective or substantial reason.  

Augustine v Data Cars Ltd [2025] EWCA Civ 658 

Facts of the case 

The claimant was employed as a part-time taxi driver by Data Cars Ltd. The company required all drivers, regardless of whether they worked full-time or part-time, to pay a flat weekly “circuit fee” of £148 to access the company’s booking system in order to secure work. 

The claimant brought a claim under Regulation 5 of the PTWRs, which gives part-time workers the right not to be treated less favourably than comparable full-time workers. The claimant argued that the flat fee policy disproportionately impacted part-time workers as they earned less overall but paid the same fee as full-time drivers – citing there was no pro rata approach to the fee. He claimed that this amounted to less favourable treatment on the grounds of his part-time status. 

The employment tribunal rejected the claim. The tribunal held that all drivers were treated equally in being charged the same fee; the fee was not imposed solely because of any part-time status, and therefore did not breach the PTWRs. In reaching this conclusion, the tribunal applied the interpretation of the PTWRs from a previous decision (McMenemy v Capita Business Services Ltd) – namely, that less favourable treatment had to be solely on the ground of a part-time status. Even if there was less favourable treatment of the claimant, it was not solely due to his part-time status and therefore the claim failed.  

McMenemy was decided by the Inner House of the Court of Session in Scotland, a court of equivalent appellate status to the Court of Appeal of England and Wales within the UK judicial hierarchy. 

The claimant appealed to the Employment Appeal Tribunal (EAT), which also followed the previous decision in McMenemy and dismissed the appeal. He appealed again to the Court of Appeal.  

Court of Appeal decision 

The Court of Appeal upheld the tribunal’s decision. However, the majority of the Court (two of the three judges) considered that the interpretation of the PTWRs in McMenemy was incorrect. Ultimately, the Court of Appeal said it was bound to follow McMenemy to maintain consistency across jurisdictions and that it would take more than a “mere disagreement” with

the first court to justify a refusal to follow its decision by the second court. The Court of Appeal granted permission for the case to be appealed to the Supreme Court, however, with the majority making it clear that in their view, a further appeal should be allowed. 

The Court of Appeal’s judgment provides a useful analysis on the inter-play between the relevant European Framework Agreement, which incorporates the word “solely”, and the PTWRs, which do not. The court looked to case law for interpretation of the word “solely” and for continuity held it should follow McMenemy. Whilst the court is not technically bound by decisions of the Inner House of the Court of Session or the Court of Appeal in Northern Ireland, it is generally desirable to follow such rulings on UK-wide statutory provisions, leaving any divergence to be resolved by the Supreme Court. 

The Birketts view  

The majority decision in the Court of Appeal was that the “solely” test in McMenemy is incorrect, even though it ultimately dismissed the claimant’s appeal. This leaves open a realistic appeal to the Supreme Court to establish the correct test. We could therefore see a departure from the current approach in the future, which would most likely lower the bar for causation when looking at claims for discrimination by part time workers. For the time being, however, it remains difficult for part-time workers to establish that any less favourable treatment is solely caused by their part-time status. It will be interesting to see how the Supreme Court will decide on the appropriate test to establish the causal link, should the case be appealed again.