Augustine v Data Cars Ltd

Factual and Procedural Background

This is an appeal against a decision by the Employment Appeal Tribunal ("EAT") dated 15 July 2024. The EAT had found that the Appellant had been treated less favourably than comparable full-time workers by the Respondent employer. However, the EAT dismissed the claim under regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the 2000 Regulations") on the basis that the less favourable treatment was not solely due to the Appellant’s part-time status, although that status was an effective cause. The EAT considered itself bound by a decision of the Court of Session (Inner House) in a previous case, which held that less favourable treatment must be solely due to part-time status to engage the protections of the Regulations.

Permission was granted by the EAT to appeal on two grounds, one of which was later abandoned following a recent Court of Appeal decision. The remaining issues concern the correctness of the previous Court of Session decision and whether the Court of Appeal should follow it.

The factual background concerns the application and interpretation of the 2000 Regulations and related European Directives rather than specific disputed facts, which are set out fully in the Employment Tribunal and EAT judgments.

Legal Issues Presented

1. Whether the EAT was correct to hold that the Court of Session decision was wrongly decided on the causation test for less favourable treatment under the 2000 Regulations.
2. If the Court of Session decision was wrong, whether this court should nevertheless follow it in accordance with precedent principles.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework under which the 2000 Regulations were made, particularly section 19 of the Employment Relations Act 1999, which empowered the Secretary of State to make regulations ensuring part-time workers are not treated less favourably than full-time workers.

The court considered the wording of regulation 5 of the 2000 Regulations, which provides the right not to be treated less favourably "on the ground that" the worker is part-time. The court distinguished this from the Directive’s Framework Agreement language, which uses the phrase "solely because," noting the deliberate omission of "solely" in the Regulations.

The court reviewed prior case law, including McMenemy, which applied a narrow causation test requiring the less favourable treatment to be solely due to part-time status. The court found that this narrow test was inconsistent with the plain language of the 2000 Regulations and the broader purpose of the legislation.

The court acknowledged the EAT and other appellate decisions (Sharma, Carl) that had adopted a broader causation test, holding that part-time status need only be an effective cause of the less favourable treatment, not necessarily the sole cause.

Despite concluding that McMenemy was wrongly decided on the causation issue, the court reasoned that it should follow McMenemy to maintain consistency across jurisdictions (England, Wales, and Scotland) and avoid conflicting decisions, relying on established precedent principles.

The court further noted that the subjective intention or motive of the employer is irrelevant to the causation analysis.

Lady Justice Elisabeth Laing dissented on the correctness of McMenemy, supporting the narrow causation test, emphasizing that the Directive’s language and context support a restrictive interpretation. However, she agreed with the outcome of dismissing the appeal due to precedent.

Lord Justice Bean concurred with the majority view that McMenemy was wrongly decided but should be followed, citing precedent principles and the importance of uniformity, and acknowledged the unsatisfactory state of the law pending a Supreme Court decision or amendment to the Regulations.

Holding and Implications

The court DISMISSED THE APPEAL, upholding the binding effect of the Court of Session decision in McMenemy despite considering it wrong in law.

The direct effect is that the narrower causation test requiring that less favourable treatment be "solely because" of part-time status remains authoritative until the Supreme Court resolves the issue or the Regulations are amended. Consequently, part-time workers must prove that their part-time status was the sole ground for less favourable treatment to succeed under regulation 5 of the 2000 Regulations.

No new precedent was set by this decision; rather, it reinforced the importance of judicial comity and consistency across jurisdictions. The court granted permission to appeal to the Supreme Court to provide a definitive ruling on this issue.