In the recent case of Augustine v Data Carsthe Claimant was a part-time taxi driver. He was required to pay a flat weekly circuit fee of £148 to the Respondent. The same fee was payable by all drivers, regardless of the hours they worked.

The Claimant alleged part-time workers discrimination because he was required to pay the full fee each week. The original employment tribunal dismissed his claim, holding that the Claimant had not established that he was treated less favourably than a comparable full-time worker as they both had to pay the fee.

The tribunal further concluded that even if the Claimant had been able to establish less favourable treatment, the charging of the circuit fee was not on the sole ground that he was a part-time worker, so his claim would still have failed.
The Employment Appeal Tribunal (EAT) disagreed with the tribunal but found that the outcome remained correct:

  1. By charging a flat fee to all employees, the Respondent was not treating part-time and full-time employees in the same way. The Claimant, being part-time, was receiving proportionately less pay than his full-time comparator, once the fee had been deducted from take-home pay.
  2. Considering whether this less favourable treatment was because of the Claimant being part-time, the EAT found that, although its own view was that the correct test should be whether part-time status was an effective cause of the treatment (rather than the sole cause), it was bound by the judgment of the Scottish Court of Session in the case of McMenemy v Capita Business Services. This case held that less favourable treatment would only be ‘on the ground’ of being a part-time worker if the treatment was solely for that reason. The tribunal had therefore been correct to apply the ‘sole reason’ test (although it had made an error in the way it had done so). The EAT found this error did not alter the outcome. Therefore, the claim should fail.