Part-time worker discrimination: why treating everyone the same may not be good enough

Treating everyone the same might sound like a generally safe HR approach. But a new Supreme Court decision is a useful reminder that sometimes, applying exactly the same rule to everyone can put part-time workers at a disadvantage.

In Augustine v Data Cars Ltd, Mr Augustine was a private hire driver who worked an average of 34.8 hours a week. Data Cars charged all drivers the same weekly fee of £148 to access its booking system, regardless of how many hours they worked. Mr Augustine compared himself with a full-time driver who worked more than 90 hours a week.

Both paid exactly the same fee. However, because Mr Augustine worked fewer hours, the fee cost him more for each hour he worked. This meant he took home proportionately less.

What does the law say?

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 protect part-time workers from being treated less favourably because they work part-time.

Previously, the courts had suggested that working part-time had to be the only reason for the less favourable treatment.

The Supreme Court has now said that this is wrong. Part-time status does not have to be the only reason. It is enough if it is an important or effective reason for the treatment.

Importantly, employers can still defend a claim if they can objectively justify the treatment. Broadly, this means showing that there is a good business reason for it and that the approach taken is appropriate and necessary.

What does this mean for HR?

The key message from Augustine is not to assume that a policy is fair simply because everyone is treated in exactly the same way.

Fixed fees, benefits, or rules about qualifying for particular entitlements could all leave part-time workers worse off because they work fewer hours.

When reviewing policies and benefits, ask two questions: does this put part-time workers at a disadvantage because they work part-time? If it does, can we justify it?

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

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