The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations") are intended to protect part-time workers from less favourable treatment on the grounds of their status as a part-time worker, if the treatment cannot be objectively justified. To be successful, the worker must show (1) that they have been subjected to less favourable treatment and (2) that the treatment was "on the ground that the worker was a part-time worker".
In 2004, in Gibson v Scottish Ambulance Service ("Gibson"), the Employment Appeal Tribunal (EAT) sitting in Scotland held that to successfully bring a claim it was not sufficient that a worker's part-time status was one of the reasons for the less favourable treatment, it had to be the sole reason for the treatment. This meant if the employer could show that there were any other factors that led to the less favourable treatment, a claim under the Regulations would fail. This sets the part-time workers claims apart from other types of discrimination, where the discrimination need not be the sole or even the primary reason for less favourable treatment. However, the influence of Gibson was subsequently increased when it was approved by the Inner House of the Court of Session (a Scottish Court) in McMenemy Capita Business Services ("McMenemy") leaving no doubt as to the position in Scotland.
The EAT sitting in England and Wales is not bound by Court of Session decisions, although they will often be followed in the absence of any English authority to the contrary. Consequently, the EAT in England have at times taken a different approach. There are a number of English EAT judgments that concluded it was enough for a claimant to be successful if the part-time status was the predominant reason, rather than the sole reason, for the less favourable treatment. This aligns with the approach taken when dealing with other types of discrimination.
However, in July this year in Augustine v Data Cars Ltd the EAT sitting in England followed the Scottish position as espoused in Gibson and McMenemy. While this levelled out the playing field between part-time workers in Scotland and England (at least in this case) in terms of what is required to successfully make a claim under the Regulations, it continues to set a much higher bar higher for a successful part-time workers claim than it does for other types of discrimination. Indeed, the EAT made it clear that while they felt bound to follow McMenemy for reasons of the public interest of consistency of approach, it did not believe that it was the correct approach. Instead, it considered the correct approach was whether the part-time status was the "effective and predominant cause" of the less favourable treatment.
Where does this leave employers?
The judgment of the EAT in Augustine is not binding on future EAT decisions in England and Wales and the EAT in Scotland is still bound to follow McMenemy. However, given the EAT's approach here, lack of certainty over whether English tribunals may be more inclined to follow the narrower Scottish approach (making a successful claim more difficult to achieve) may deter some part-time workers from bringing a claim. Conversely, defending a claim would become easier for English employers - rather than having to persuade a tribunal as to the weight to be applied to an alternate reason for the less favourable treatment, the very fact that there is one would be enough for the claim to be dismissed.
As demonstrated by the EAT's decision in Augustine, the lack of alignment between the tribunals in Scotland and England creates an unsatisfactory and potentially unbalanced situation. Given that the EAT also clearly indicated their view that the narrower Scottish position was not the correct one, albeit it felt bound to follow it, it leaves this issue ripe for an appeal to a higher court that can unify the approach to be taken. In the meantime, employers should ensure that they are not treating workers less favourably for reasons either solely or predominantly due to their workers' part-time status.
