UK: Supreme Court lowers the bar for part-time worker claims

The Supreme Court has overturned previous caselaw and confirmed that part-time workers can bring claims that they have been treated less favourably (than a comparable full-time worker) where their part-time status is an effective cause of the treatment, even if there were other contributing factors. Part-time status does not need to be the sole cause of the treatment. Employers should review apparently neutral policies and benefits where part-time status contributes to less favourable treatment and consider whether this can be objectively justified.

In Augustine v Data Cars Ltd, a part-time driver was disadvantaged by the employer charging all drivers a fixed weekly fee to access its booking system, so that part-time drivers paid a much higher fee per hour worked.  The Court noted that the UK's Part-time Worker Regulations prohibited less favourable treatment "on the ground of" being part-time, rather than "solely because" of that status as in the relevant European legislation (which the UK rules implemented), suggesting that parliament had intended to provide protection similar to that in discrimination law (where the protected characteristic need only be part of the reason).  This is an easier test for part-time workers to satisfy and will shift the focus to the issue of objective justification The other reasons for the treatment may still be relevant to justification and the assessment of compensation. 

Employers should review seemingly neutral practices which could have a differential impact on part-timers, such as bonuses or benefits conditional on minimum hours, flat-rate charges, bank holiday entitlement conditional on working that day, minimum number of days' office attendance, or certain redundancy criteria such as minimum output or shift flexibility.  Ideally these should be pro-rated if possible;  if not, business reasons justifying any differential treatment should be documented (for example, a flat rate charge could simply reflect a fixed cost incurred by the employer). 

It is likely that a similar approach would be taken to claims of less favourable treatment "on the ground of" an employee's fixed-term status (where the relevant EU legislation again uses the narrower "solely because" wording).  It would therefore be prudent also to review the impact of policies and benefits on these employees and document justification for any differential treatment.