Flat Fees And Part-Time Discrimination: The Court Of Appeal’s Take In Augustine v Data Cars Ltd

In a significant decision for employers and part-time workers alike, the Court of Appeal has handed down its judgment in Augustine v Data Cars Ltd, a case that probes the boundaries of protection under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The ruling provides clarity, albeit with some controversy, on when treatment can be said to be “on the ground” of part-time status.

Augustine v Data Cars Ltd [2024] EAT 117

Background

The Claimant, Mr Augustine, worked as a part-time taxi driver for Data Cars Ltd.As part of his contractual arrangement, he was required to pay a flat weekly “circuit fee” of £148 to access the company’s booking system. This fee was applied uniformly to all drivers, regardless of how many hours they worked or how much income they generated.

Mr Augustine brought a claim alleging that this flat-fee arrangement amounted to unlawful discrimination against part-time workers. He argued that, because he worked fewer hours than full-time drivers, the fee represented a proportionally greater burden on him and other part-time drivers.

Key legal issues

The key legal issue was whether the flat fee constituted less favourable treatment “on the ground” of Mr Augustine’s part-time status. The Court of Appeal considered whether the treatment was directly linked to his part-time working pattern or whether it was a neutral policy applied across the board.

To resolve this, the Court turned to the precedent set by the Inner House of the Court of Session in McMenemy v Capita Business Services. That case established that for treatment to be discriminatory under the Regulations, part-time status must be the sole reason for the treatment.

The Court’s decision

The Court of Appeal held that the flat fee did not amount to unlawful discrimination. The fee was not imposed because Mr Augustine was a part-time worker; it was a standard charge applied to all drivers, irrespective of their working hours. Therefore, the treatment was not “on the ground” of part-time status as required by the Regulations.

However, this decision was not without hesitation. A majority of the judges expressed concern that the McMenemy decision may have been wrongly decided. They noted that requiring part-time status to be the sole reason for the treatment sets a high bar that may not align with the broader purpose of the Regulations—to prevent less favourable treatment of part-time workers.

Despite these reservations, the Court felt constrained by the need for consistency across Great Britain. Since the relevant statutory provisions apply equally in England, Wales, and Scotland, the Court was reluctant to diverge from a Scottish authority without a definitive ruling from the Supreme Court.

Implications for employers

This case provides numerous valuable takeaways for employers:

What happens next?

Given the ongoing uncertainty in the legal position, Lord Justice Bean considered it appropriate to grant Mr Augustine permission to appeal to the Supreme Court. If the appeal goes ahead, it could provide much-needed clarity on the scope of protection for part-time workers and potentially reshape the legal test for discrimination under the Regulations.

Comment

While the decision in Augustine provides some reassurance for employers using standardised fee or cost-sharing models, it also highlights the fragility of the current legal framework. Until the Supreme Court weighs in, the law remains in what the Court itself described as an “unsatisfactory state.”

For now, employers should continue to review their policies to ensure they are not only legally compliant but also fair and proportionate in practice. Where policies may have a disproportionate impact on part-time staff, it may be prudent to consider adjustments or justifications to mitigate potential claims.