Court of Appeal follows Court of Session authority on causation in part-time worker discrimination claims

In Augustine v Data Cars Ltd [2025] EWCA Civ 658, the Court of Appeal dismissed the claimant’s appeal under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regs 2000), SI 2000/1551, concerning a flat-rate ‘circuit fee’ imposed equally on all drivers regardless of hours worked. The claimant, a part-time minicab driver, argued that this constituted less favourable treatment due to his part-time status. The Employment Tribunal found no breach. The EAT disagreed with the ‘sole reason’ test as set out by the Court of Session in McMenemy v Capita Business Services [2007] IRLR 400, preferring a construction which considered the ‘effective and predominant cause’ of the less favourable treatment. However, in terms of precedent, it felt bound to follow McMenemy. The EAT in England and Wales is not strictly bound by Court of Session decisions but decided the appropriate course was to follow it, referring to the public interest in consistency of approach.

The Court of Appeal unanimously dismissed the appeal. Applying the test set out in McMenemy, the Court of Appeal found the tribunal was entitled to dismiss the claim on the basis that the claimant’s part time status was not the ‘sole’ reason for the treatment. However, the Court was divided in their reasoning:

• Edis and Bean LJJ considered McMenemy was wrongly decided, favouring a test of ‘effective and predominant cause’ over ‘sole cause’, aligning with earlier EAT decisions in Sharma v Manchester CC [2008] IRLR 336 and Carl v University of Sheffield [2009] IRLR 616, and Eady P in the EAT in the present case;

• Elisabeth Laing LJ held that McMenemy, interpreting the PTW Regs 2000 as requiring sole causation, was correctly decided and disagreed with the analysis of Elias P in Sharma and Eady P’s EAT decision in the present case;

• however, citing Abbott v Philbin [1960] 2 All ER 763 and Jwanczuk v SSWP [2023] EWCA Civ 1156, the Court considered it nevertheless appropriate to apply McMenemy to maintain consistency to the interpretation of the PTW Regs 2000 across the UK jurisdictions;

Acknowledging that the decision leaves the law on part-time worker discrimination in an ‘unsatisfactory state’, Bean LJ concluded that, if the claimant wished to pursue an appeal to the Supreme Court, he should be granted leave to do so, so the issue can be resolved definitively.

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