Warren Augustine v Data Cars Limited [2025] EWCA Civ 658

[2025] EWCA Civ 658Case No CA-2024-001900
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Eady J (President), Mrs. Gemma Todd, Dr. Gillian Smith MBE
EA-2022-00473-LA
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2025
Before
LORD JUSTICE BEANLADY JUSTICE ELISABETH LAINGLORD JUSTICE EDIS
Between
WARREN AUGUSTINEAppellantDATA CARS LIMITEDRespondent
Tristan Jones KC (instructed by Advocate) for AppellantTom Mountford (instructed by Mishcon de Reya) for RespondentHearing Hearing date: 10 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 20 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal against a decision by the Employment Appeal Tribunal (“EAT”) handed down on 15 July 2024. The judgment of the EAT may be found at [2024] EAT 117. In it, the EAT decided that the appellant, Mr. Augustine, had been treated less favourably than full time workers by the Respondent, Data Cars Limited by whom he was employed. The EAT nevertheless dismissed his claim under regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the 2000 Regulations”). This was because the EAT found that the less favourable treatment was not solely on the ground that he was a part-time worker, although his part-time status was an effective cause of it. The EAT held that this was the wrong test in law, and that the right under Regulation 5(1) not to be subjected to less favourable treatment applies where the status as a part-time worker was an effective cause of the less favourable treatment even if not the sole cause. However, the EAT held that it ought to follow a decision of the Court of Session (Inner House) to the contrary effect, namely McMenemy v. Capita Business Services Limited [2007] IRLR 400 (“McMenemy”).[2]Permission was granted by the EAT to advance two grounds of appeal in this court. These are:- i) GROUND 1: the EAT erred at paragraph 82 in deciding to approach the appeal on the basis that McMenemy was binding upon it. The EAT had already correctly held that McMenemy was not binding as a matter of law; and it had also decided that McMenemy was wrong as a matter of law; and in the circumstances the EAT ought not to have followed McMenemy. ii) GROUND 2: In any event, the Court of Appeal is not bound by the McMenemy decision and for the reasons identified in the EAT’s judgment McMenemy is wrong in law and ought not to be followed. Regulation 5 of the 2000 Regulations applies if a worker’s part time status is an effective cause of the less favourable treatment; the claimant does not need to show that his part-time status was the sole cause of the less favourable treatment.[3]Ground 1 is now no longer pursued in the light of the decision of this court in Jwanczuk v. SSWP [2023] EWCA Civ 1156, [2024] KB 275 (“Jwanczuk”). An appeal against the decision in Jwanczuk was heard in the Supreme Court in March this year and judgment is awaited.[4]The issues for his court are, therefore:- i) Whether the EAT was right to hold that McMenemy was wrongly decided on the point at issue. ii) If so, should this court follow McMenemy?

The facts

[5]It is not necessary to say anything about the facts in the light of the points of law about the proper construction of the Regulations and about the proper approach of this court to decisions of its equivalent in Scotland, namely the Court of Session (Inner House). The facts are fully set out in the judgments of the ET and of the EAT. The Regulations[6]The 2000 Regulations were made under a specific statutory duty to make regulations created by section 19 of the Employment Relations Act 1999:- “19.— Part-time work: discrimination.(1) The Secretary of State shall make regulations for the purpose of securing that persons in part-time employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than persons in full-time employment.(2) The regulations may— (a) specify classes of person who are to be taken to be, or not to be, in part-time employment; (b) specify classes of person who are to be taken to be, or not to be, in full-time employment; (c) specify circumstances in which persons in part-time employment are to be taken to be, or not to be, treated less favourably than persons in full-time employment; (d) make provision which has effect in relation to persons in part-time employment generally or provision which has effect only in relation to specified classes of persons in part-time employment.(3) ……… .(4) Without prejudice to the generality of this section the regulations may make any provision which appears to the Secretary of State to be necessary or expedient— (a) for the purpose of implementing Council Directive 97/81/EC on the framework agreement on part-time work in its application to terms and conditions of employment; (b) for the purpose of dealing with any matter arising out of or related to the United Kingdom's obligations under that Directive; (c) for the purpose of any matter dealt with by the framework agreement or for the purpose of applying the provisions of the framework agreement to any matter relating to part-time workers.” (a) specify classes of person who are to be taken to be, or not to be, in part-time employment; (b) specify classes of person who are to be taken to be, or not to be, in full-time employment; (c) specify circumstances in which persons in part-time employment are to be taken to be, or not to be, treated less favourably than persons in full-time employment; (d) make provision which has effect in relation to persons in part-time employment generally or provision which has effect only in relation to specified classes of persons in part-time employment. (a) for the purpose of implementing Council Directive 97/81/EC on the framework agreement on part-time work in its application to terms and conditions of employment; (b) for the purpose of dealing with any matter arising out of or related to the United Kingdom's obligations under that Directive; (c) for the purpose of any matter dealt with by the framework agreement or for the purpose of applying the provisions of the framework agreement to any matter relating to part-time workers.”[7]The Explanatory Notes to the 1999 Act say this:- “217. The regulations will primarily address less favourable treatment in non-statutory terms and conditions, as statutory employment rights in the UK do not treat part timers less favourably than their full-time equivalents. The powers are widely drawn and the Government intends to consult fully on how they should be used, by discussing with interested parties and publishing draft regulations for comment. Section 42 provides that the regulations will be subject to the affirmative resolution procedure.”[8]Regulation 5 of the 2000 Regulations provides:- “5.— Less favourable treatment of part-time workers(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker– (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.(2) The right conferred by paragraph (1) applies only if– (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds.(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.(4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.” (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds.[9]The ‘pro rata principle’ referred to in Regulation 5(3) above is explained in Regulation 1(2):
““pro rata principle” means that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker;”
[10]Full-time worker”, “part-time worker” and “comparable full-time worker” are defined in Regulation 2.[11]Regulation 8 establishes a right for a worker to present a complaint to the employment tribunal that his employer has infringed regulation 5. Where an employment tribunal finds that a complaint is well founded, it shall take such of the prescribed steps as it considers just and equitable, including ordering the employer to pay compensation (regulation 8(7)) in such sum as it considers just and equitable in all the circumstances (regulation 8(9)).[12]The 2000 Regulations were intended to implement the Part-Time Work Directive 97/81 (which extended to the United Kingdom by Directive 98/23/EC). We shall refer to these Directives as “the Directive”, which was itself intended to implement a “Framework Agreement on part-time work” annexed to the Directive. The Framework Agreement was reached between general cross-industry organizations, the Union of Industrial and Employer's Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trade Union Confederation (ETUC). They asked the Commission to implement the agreement by a Directive. The Directive was intended to achieve that. Article 1 of the Directive says:- Article 1 The purpose of this Directive is to implement the Framework Agreement on part-time work concluded on 6 June 1997 between the general cross-industry organizations (UNICE, CEEP and the ETUC) annexed hereto.

Article 1

[13]Recital 11 in the preamble to the Directive is in these terms:- “Whereas the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements for part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike.”[14]Clause 4 of the Framework Agreement provides in relevant part:
“Clause 4: Principle of non-discrimination 1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply.”
[15]The Explanatory Note published with the 2000 Regulations says:- “These Regulations come into force on 1st July 2000 and implement Directive 97/81/EC (normally referred to as the Part-time Work Directive) as extended to the United Kingdom by Directive 98/23/EC, in Great Britain. The Regulations give part-time workers the right in principle not to be treated less favourably than full-time workers of the same employer who work under the same type of employment contract. In addition a right is given to workers who become part-time or, having been full-time, return part-time after absence, to be treated not less favourably than they were before going part-time. The rights apply where the less favourable treatment is on the ground that the worker is part-time and is not justified on objective grounds. The rights are exercisable by complaint to an employment tribunal.” The rights are exercisable by complaint to an employment tribunal.”[16]It will be apparent that the word “solely” is used in the Framework Agreement, but not in the 2000 Regulations. The issue is whether the 2000 Regulations should be construed in accordance with their plain meaning, without that word, or whether they should be construed so that they are consistent with the Framework Agreement in this respect. The latter construction would provide less complete protection for part-time workers because those who could not show that their part-status was the sole cause of the less favourable treatment would fail. Merely showing that the treatment was predominantly, substantially, or materially caused by it would not be enough.

The previous decisions on this issue reviewed by the EAT

[17]In my judgment the way in which the EAT analysed and explained the effect of earlier decisions was impeccable. I will set out my own thoughts more briefly, because the fuller version in the EAT judgment is available.[18]The EAT considered the expression “on the ground that” as found in other provisions in the area of discrimination law.[19]Seven decisions about the 2000 Regulations were identified and considered. Only one of them pre-dates McMenemyand was cited in it. This is the EAT decision in Gibson v. Scottish Ambulance Service EATS/0052/04, December 2004, “Gibson”. The analysis in Gibson was adopted and approved in McMenemy. Subsequently the EAT in the Scottish case of Forth Valley Health Board v. Campbell EATS/0003/21 (“Forth Valley”) applied the law as explained in those decisions in 2021.[20]Two decisions of the EAT in England and Wales took a different view. Sharma v. Manchester City Council [2008] ICR 623 (March 2008) (“Sharma”) and Carl v. University of Sheffield [2009] 3 CMLR 21, May 2009 (“Carl”).[21]There were less decisive references to the point at issue in Ministry of Justice v. Blackford [2017] ICR 277 and Engel v. Ministry of Justice [2017] ICR 277.[22]The key conflict is between McMenemy and Sharma. McMenemy was not cited in Sharma, and Sharma may very well have been decided differently if it had been. However, for this court in deciding the primary question of whether McMenemy was correctly decided none of these EAT decisions has any status as a precedent. We are free to say, if we think it is right, that any or all of them were wrong.[23]For this reason, my analysis of authority will be confined to examining McMenemy in some detail and then identifying more briefly the doubts expressed by the EAT in Sharma, Carl and by the EAT in the present case. McMenemy[24]This decision was impacted by the way the case was presented to the court. At [5] Lord Nimmo Smith, giving the opinion of the court, said:- “…parties were agreed on the approach to the construction of this legislation. The 2000 Regulations should be construed consistently with the Directive, and should be given a purposive construction.”[25]At [6] the court said this:- “[6] It was common ground between the parties that the foregoing cases established the proper approach construction of the legislation. It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers, or were intended to do more than to bring UK law into line with community law. Where the parties disagreed was over the implications of the inclusion of the word ‘solely’ in cl 4.1 of the Directive. In our opinion, the language of cl 4.1 of the Directive connotes the need to consider whether there is a causative connection between the discrimination complained of by the worker and the part time nature of the worker’s employment. As we have said, the prohibition is against less favourable treatment of part-time workers, than comparable full-time workers, for the reason that they work part-time and for that reason alone. This necessitates inquiry into the employer’s intention in so treating the part-time worker.”[26]The “foregoing cases” included a citation from Wippel v Peek & Cloppenburg GmbH & Co KG, Case 313/02, a decision of the Grand Chamber of the European Court of Justice. In the course of their judgment the Court said (para 54):
“[C]lause 4 of the Framework Agreement annexed to Directive 97/81, in regard to employment conditions, precludes part-time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part-time unless different treatment is warranted on objective grounds.”
[27]The Court of Session returned to this when stating its conclusion on this issue after expressing agreement with the decision in Gibson. Paragraph [6] says this:- “The part-time worker who complains that his employer is treating him less favourably than he does a comparable full-time worker in breach of the legislation must therefore establish that the employer intends to treat him less favourably on the sole ground that he is a part-time worker (see the passage in Wippel v Peek & Cloppenburg GmbH & Co KG quoted). Additional reasons for construing the word ‘solely’ in this way are that, as counsel for the respondents pointed out, there is, first, no reference in the Directive to indirect discrimination and, secondly, different treatment, if established, may nevertheless be ‘justified on objective grounds’.”[28]The effect of approving the decision in Gibson was to reject the “but for” test for causation in favour of the formulation set out.

Sharma and Carl

[29]In Sharma the EAT, Elias J, (President) sitting with two members, expressed strong disagreement with Gibson, but does not appear to have had McMenemy cited to it, even though it was decided about a year after McMenemy. The EAT said this:- “The “sole reason” issue 47 As we have said, the tribunal apparently considered that it was bound by the decision in Gibson v Scottish Ambulance Service 16 December 2004 to conclude that the part-time nature of the worker’s status had to be the sole reason for the discriminatory treatment. We have no doubt that this is not a legitimate construction of the Regulations, and in Gibson itself the appeal tribunal hardly gave a ringing endorsement of the construction. 48 In our judgment, the reference to “solely” in Directive 97/81 is simply intending to focus upon the fact that the discrimination against a part-timer must be because he or she is a part-timer and not for some other independent reason. 49 To take a simple example, if the employer decided to discriminate against all part-timers over the age of 30 it could be said that there were two reasons for the discrimination: being a part-timer, and being of a certain age. Similarly, if the employer deliberately discriminates against all his part-timers in factory A but not those with identical full-time comparators in factory B, can it really be said that, because only some part-timers are selected for the less favourable treatment, the Directive (and by extension the Regulations) are not intended to be applicable? 50 In our judgment it is inconceivable that the Directive was not intended to outlaw such treatment (subject to justification) and we have no doubt whatsoever that it would inevitably be construed by the European Court of Justice to do so. Any other conclusion would wholly undermine the very purpose of the Directive. The fact that not all part-timers are treated adversely does not mean that those who are cannot take proceedings for discrimination if being part-time is a reason for their adverse treatment. 51 In our judgment, once it is found that the part-timer is treated less favourably than a comparator full-timer and being part-time is one of thereasons, that will suffice to trigger the Regulations.”[30]In Carl HHJ Peter Clark, sitting in the EAT with members, agreed with Sharma, having had the opportunity to consider McMenemy. He said:- “39. On appeal we note from the judgment of Lord Nimmo Smith that the Court of Session were satisfied ([3]) that the less favourable treatment of part-time workers must, under the Directive, be for the reason that they work part-time and for that reason alone. Further, and we think significantly, it was common ground between the parties ([5]) that the Regulations should be construed consistently with the Directive and should be given a purposive approach. Reference is then made to Wippel [2005]1C.M.L.R. 9 and in particular [54] of the ECJ Judgment, where it is said:
‘‘Clause 4 . . . precludes part time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part time . . .’ 40. Indeed, at [6], Lord Nimmo Smith records: ‘‘It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers or were intended to do more than to bring United Kingdom law into line with Community law.’’
Gibson was cited to the Court (Mr Napier again appeared for the employer on this occasion) and approved. 41. Before us Mr Pilgerstorfer does not make the same generous concession recorded by the Court of Session in McMenemy [2006] I.R.L.R. 761. He invites us to follow the President’s judgment in Sharma [2008] I.R.L.R. 336. 42. We are not strictly bound by any of the previous cases; even by the Court of Session. For our part we agree with Mr Pilgerstorfer. The expression ‘‘on the ground that’’ or ‘‘on the grounds of’’ frequently appears in our domestic legislation. It was considered by the Court of Appeal in English in the context of the Sexual Orientation Regulations 2003, where the majority (Sedley and Laurence Collins L.JJ.) read the domestic provisions consistently with the Equal Treatment Framework Directive which they were designed to implement. Laws L.J. took a different view. However, we agree with the President in Sharma [2008] I.R.L.R. 336 that whereas domestic legislation must provide the protection contained in the Directive, it is not limited to such protection. ‘‘On the ground that’’ in reg.5(2)(a) means what Mummery P. said the similar expression in the SDA meant. Part-time work must be the effective and predominant cause ofthe less favourable treatment complained of; it need not be the only cause.” ‘‘Clause 4 . . . precludes part time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part time . . .’ ‘‘It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers or were intended to do more than to bring United Kingdom law into line with Community law.’’[31]The reference to Mummery P refers back to paragraph [25] of the same judgment, where Judge Clark had said this:- “The use of the expression ‘‘on the ground of’’ appears in s.1(1)(a) SDA and RRA, as we have earlier mentioned. In interpreting that expression in O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] I.C.R. 33; [1996] I.R.L.R. 372 at [43F], Mummery P said; ‘‘The basic question is: what, out of the whole complex of facts before the tribunal, is the ‘effective and predominant cause’ or the ‘real or efficient cause’ of the act complained of?” and later (at [43G]) he added:
‘‘The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. ‘It is enough if it is an effective cause:’
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] Q.B. 375; [1995] 2 W.L.R. 607 at [406 EF](CA).’’ ‘‘The basic question is: what, out of the whole complex of facts before the tribunal, is the ‘effective and predominant cause’ or the ‘real or efficient cause’ of the act complained of?” ‘‘The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. ‘It is enough if it is an effective cause:’ Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] Q.B. 375; [1995] 2 W.L.R. 607 at [406 EF](CA).’’[32]In the present case, Eady J, sitting as President of the EAT with members, agreed with paragraph 49 of Sharma and continued:- “72. ……….if we are wrong about that, however, we cannot see why that minimum requirement should limit a wider protection allowed under domestic law; in this regard, we consider that the concession recorded at paragraph 6 McMenemywas wrongly made. As for the additional reasons given for the McMenemyconstruction (cited at the end of paragraph 6 in that case), we are unable to see why any lack of reference to indirect discrimination in the [2000 Regulations], still less the inclusion of a justification defence, should be seen as supporting a narrow approach. 73. For completeness, to the extent that the ET considered the respondent’s intention to be a relevant consideration when determining causation (see, e.g., the ET at paragraph 60), we would also consider this to demonstrate an error in its approach. As has been made clear in the case-law, when determining the reason why the treatment in question occurred, the motive or intention of the relevant actor or decision-taker is not relevant (Amnesty International v. Ahmed [2009] ICR 1450 EAT; R (oao E) v Governing Body of JFS and ors[2009] UKSC 15). Insofar as the reasoning of the EAT in Gibson(“it is necessary tolook at the intention behind the decision ...”), or that of the Inner House in McMenemy(“This necessitates inquiry into the employer’s intention ...”), suggests that the employer’s intention or motive is a relevant factor, we would find that hard to reconcile with the approach that has been laid down in later cases.”

Discussion

[33]In my judgment the construction of the 2000 Regulations should start with the provision under which they were made. This is section 19 of the Employment Relations Act 1999, which I have set out at [6] above. The Secretary of State has a duty to make regulations “for the purpose of securing that persons in part-time employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than persons in full-time employment.” This created a free-standing statutory duty on the Secretary of State as a matter of UK domestic law. The words “for such purposes and to such extent as the regulations may specify” mean that neither the purposes nor the extent of the restriction on less favourable treatment were fixed. The Secretary of State has a range of options in that regard. If regulations were made which apparently failed to enshrine in UK law the minimum standards required by the Directive, the courts would endeavour to construe them so that those standards were protected. However, if and to the extent that the regulation provided protection which went beyond those minimum standards it would not be ultra vires.[34]It is clear that the Employment Relations Act 1999 and the 2000 Regulations do fully implement the Framework Agreement and the Directive in UK law. The Explanatory Notes make it clear that this was the purpose of the 1999 Act:- “The Directive was brought forward under the Agreement on Social Policy to adopt as Community law a Framework Agreement between the European social partners. (These are three federations consisting of national organisations representing respectively employers, trade unions and companies with public ownership or public interest in each Member State. The CBI and TUC are both members of their appropriate groups.) It aims to remove discrimination against part-timers and improve the quality of part-time work. In Chapter 5 of Fairness at Work , the Government welcomed the Directive and said it would implement the Directive before April 2000. This provision gives the Secretary of State the powers to ensure that all aspects of the Directive and the Framework Agreement are fully implemented, together with related matters.”[35]As required by the Framework Agreement and the Directive those who suffer from less favourable treatment by their employer solely on the ground of their part time status may obtain an effective remedy by proceedings in the employment tribunal. What is at issue is whether the 1999 Act and the 2000 Regulations also allow that remedy to a wider class of part-time workers than the Framework Agreement and the Directive require. This is the class of part-time workers whose less favourable treatment was not solely on the ground of their part-time status, but was substantially caused by it.[36]The Employment Relations Act 1999 does not restrict the scope of the power to make regulations and the Explanatory Notes make it clear that this was not accidental. If the purpose of section 19 and the regulations to be made under it was strictly limited to the implementation of the terms of the Framework Agreement and the Directive, it hard to see why the powers should be “widely drawn” and why the Government would intend “to consult fully on how they should be used, by discussing with interested parties and publishing draft regulations for comment”, see the Explanatory Notes paragraph 217 at [7] above.[37]In principle, where Parliament introduces regulations which could have included the phrase “solely because they work part time”, but did not, the court would not rewrite the regulations to include it. There are, of course, canons of construction whereby the court might read a word or phrase into a statutory provision for some good reason, but it is not clear what that reason might be in this case. A purposive construction would lead to the broader, rather than the narrower class of potential beneficiaries of the new remedy, since the purpose of the provision may be drawn from Recital 11 in the Preamble to the Framework Agreement, and this is reinforced by the extract from the Explanatory Notes to the 1999 Act which states its aim as being “to remove discrimination against part-timers and improve the quality of part-time work”. The examples given by Elias J in Sharma of the consequences of the construction adopted in McMenemy are persuasive in showing how that construction would inhibit rather than advance that purpose. It is not clear to me what the Inner House meant by the expression “purposive” in reference to their approach to the 2000 Regulations. They did not deal with the purpose of the 1999 Act which is manifest from the grant of regulation making powers beyond those required simply to implement clause 4 of the Framework Agreement.[38]In any event, it is clear that the Inner House in McMenemy was influenced by concessions by counsel which were, in my judgment, wrongly made. These appear in their opinion at [5] and [6] and were:- i) The 2000 Regulations should be construed consistently with the Directive, and should be given a purposive construction. ii) It was not suggested that the 2000 Regulations went further than the Directive in conferring protection on part-time workers, or were intended to do more than to bring UK law into line with Community law.[39]The court then said that “where the parties disagreed was over the implications of the inclusion of the word ‘solely’ in cl 4.1 of the Directive”. It proceeded directly to its conclusion on that issue without identifying any argument made in favour of the broader construction which it rejected. Much of the force of any such argument had been thrown away by the concessions I have just set out.[40]I find it hard to think of any good reason why the 2000 Regulations should be construed as if they incorporated the word “solely” from clause 4.1 of the Framework Agreement when it must have been a deliberate decision to omit it. On the other hand, the construction of the plain words of the 2000 Regulations which I consider to be correct extends the remedy for discrimination to cases where the necessary causal link can be found applying the usual approach to causation in UK law. The less favourable treatment must be substantially caused by the part time status of the person affected by it. This appears to advance the purpose of the 1999 Act and the 2000 Regulations.[41]For these reasons, I consider that the decision of the Inner House in McMenemy was wrong. I agree with Elias J in Sharma, Judge Clark in Carl and the EAT in this case.[42]I would nevertheless follow it and dismiss the appeal for the reasons given in Abbott v. Philbin [1960] Ch 27 and [1961] AC 352. This reasoning has been recently reviewed and applied in Jwanczuk. The employment tribunal operates in Scotland as well as England and Wales, and it is very important that the rules of precedent are applied in a way which avoids inconsistent decisions being reached in different jurisdictions. The EAT in this case very properly took the same course. Given the pending Supreme Court decision in Jwanczuk and the very full treatment of the issue in the decision of the Court of Appeal in that case, I do not consider it necessary or desirable to say any more on this subject.[43]I would grant permission to appeal to the Supreme Court where the issue can be decisively resolved in a way which is binding across the whole jurisdiction of the EAT.

Introduction

[44]I regret that I do not agree with the analysis of Edis LJ. I consider that the decision in McMenemy is correct. As my view will make no difference to the outcome of this appeal, I will give my reasons as shortly as possible. I will refer to the Part-time Worker Directive 97/81 as ‘the Directive’ and to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 as ‘the Regulations’. I will refer to the relevant cases with the same abbreviations as Edis LJ.

The facts

[45]In a very simplified form, this case is about the ‘circuit fee’ which all the respondent’s drivers, whether they worked full-time or part-time, had to pay to the respondent. The circuit fee was a condition of getting access to the respondent’s booking system (and thus, of getting jobs). The respondent accepted that if there was a relevant difference in treatment, it was not justified. The ET’s primary finding (on two independent grounds) was that Mr Augustine had not been treated less favourably than a comparable full-time driver.[46]In case that was wrong, the ET (‘the ET’) also considered whether that treatment was ‘on the ground that’ Mr Augustine was a part-time worker. The ET noted that the respondent and other similar companies (unlike Uber) did not collect customers’ fares; customers paid the fares directly to the drivers. The circuit fee was necessary because it enabled the respondent to earn revenue from its business. The ET held that ‘the reason why’ Mr Augustine was charged a circuit fee was because that was what other comparable companies did. He was not charged a circuit fee because he worked fewer hours than some of his colleagues (judgment, paragraphs 59-66).

The Employment Appeal Tribunal’s conclusions

[47]Mr Augustine appealed on two grounds. He challenged the findings of the ET both that there was no less favourable treatment and that the ground of that treatment was not that he was a part-time worker. The EAT held that the ET’s conclusion on the first ground was wrong in law (judgment, paragraphs 27-33). The EAT also held that the ET erred in law in asking whether Mr Augustine’s status was the sole ground of his treatment, and if and to the extent that it had taken into account the respondent’s intentions. It held, nevertheless, that it was bound by McMenemy, and, applying McMenemy (at least provisionally), that Mr Augustine’s status was not the sole ground for his treatment by the respondent.

The issues

[48]Whether McMenemy is correct depends, first, on the correct interpretation of the causation test in Directive, or more accurately, the test in the Framework Agreement which is annexed to the Directive. I consider, as I shall explain, that that test is a narrow test. If that is right, the next question is not whether the domestic legislator, when implementing the Directive, had power to change that test by making it less restrictive. I agree that section 19 of the Employment Relations Act 1999 (‘the Act’) would have enabled the legislator to have relaxed the test for causation, had the legislator chosen to do that. The real question, however, is whether the language of the Regulations shows that the legislator has indeed departed from that narrow test. Section 19(2)(c) gives the Secretary of State power to ‘specify’ the circumstances in which part-time workers are ‘to be taken, to be, or not to be, treated less favourably than’ full-time workers.[49]There are therefore two issues. i) What is the test in the Directive? ii) Is there any suggestion in the Regulations that the test is more generous? The text of the Directive The background

The text of the Directive

[50]Most directives are the product of a conventional European legislative process. The Directive is not such a directive. The meat of the Directive is the ‘Framework Agreement’ which is annexed to the Directive. The Framework Agreement is the product of a negotiation between two sides, representing two broad interest groups (employers and unions). As Mr Mountford explained in his skeleton argument, the protection of part-time workers was a contentious subject, and the EC institutions did not readily reach a conclusion about the form which any such protection should take. The European Commission proposed nine draft directives on atypical work between 1982 and 1990, only one of which (making limited provision about health and safety) was adopted. The British Government vetoed a further attempt at wider legislation in 1994. The European Commission then used a new procedure for making social regulations under the Maastricht Treaty, which excluded the United Kingdom. That involved consultation by the ‘Social Partners’. If they agreed, they could make a formal agreement which the Commission could then recommend should become law. The Commission consulted the Social Partners. In 1997 they made the Framework Agreement (an agreement on ‘atypical working’), which was annexed to the Directive. That consultation and agreement took some time (see recitals (6), (7), (8) and (9) to the Directive). When the United Kingdom signed the social chapter, the Directive also applied to the United Kingdom. An attempt by the European Parliament to amend the Directive was rebuffed as it would have interfered unduly with the autonomy of the ‘Social Partners’.

The Recitals to the Directive

[51]Recital (10) records the view of the Council that ‘management and labour’ are ‘as a rule closer to social reality and social problems’ (it is not clear what the comparator is for that purpose). Recital (11) says that ‘the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements for part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers on a basis which is acceptable to employers and workers alike;’. Recital (15) makes clear that the Directive does not ‘go beyond what is necessary for the attainment of’ the objectives of the Directive. In so far as terms were not specifically defined in the Directive, member states were to be free ‘to define those terms in accordance with national law and practice…’ as long as those definitions respected the content of the Framework Agreement (recital (16)). Recital (18) noted that the Commission had drafted its proposal for a Directive so as to ‘avoid imposing administrative, financial and legal constraints in a way which will hold back the creation and development of small and medium-sized undertakings’. Recital (23) nods in the direction of the ‘Community Charter of the Fundamental Social Rights of Workers’ which ‘recognises the importance of the fight against all forms of discrimination…’ and recital (24) in the direction of the European Convention on Human Rights.

The Directive

[52]Article 1 declares that the purpose of the Directive is to implement the Framework Agreement. Article 2 deals with the mechanics for implementing the Directive. Articles 3 and 4 are formal provisions.

The Framework Agreement

[53]The second paragraph of the Preamble to recognises ‘the diversity of situations in Member States’. The Agreement ‘sets out the general principles and minimum requirements relating to part-time work. It illustrates the willingness of the social partners to establish a general framework for the elimination of discrimination against part-time workers and to assist the development of opportunities for part-time working on a basis acceptable to employers and workers’. The Framework Agreement is introduced by a list of eight ‘General considerations’. These acknowledge the usefulness of part-time work for the economy, for enterprises, for competitiveness, and for the careers of men and women at various stages of their lives. They echo the recitals by referring to the need to ‘avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings’, and by adding that the social partners are ‘best placed to find solutions that correspond to the needs of both employers and workers’.[54]The Framework Agreement records the fact of the agreement of the social partners in capital letters. Clause 1, headed ‘Purpose’ lists two purposes. They are ‘to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work’ and ‘to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers’.[55]Clause 3 defines ‘part-time worker’ and ‘comparable full-time worker’. The second is defined as a full-time worker in the same establishment, with a similar contract and engaged in similar work (with due regard being given to other considerations such as seniority, qualifications and skills). If there is no comparable full-time worker in the same establishment, ‘the comparison shall be made by reference’ to other listed matters, which include that the comparison can be ‘in accordance with national law, collective agreements or practice’.[56]Clause 4 is headed ‘Principle of non-discrimination’. By clause 4.1, ‘In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds’. Clause 4.2 enacts, where it is ‘appropriate’ the ‘principle of pro rata temporis’. Clause 4.3 provides that ‘The arrangements for the application of this clause shall be defined by Member States…’ having regard to various factors. Clause 6.1 gives Member States power to keep or to introduce more favourable provisions than those in the Framework Agreement. The Framework Agreement is ‘without prejudice to any more specific Community provisions, and in particular Community provisions concerning equal treatment or opportunities for men and women’.

Section 19 of the Act

[57]Edis LJ has already quoted section 19(1) of the Act. Mr Mountford pointed out in his skeleton argument that the contemporaneous materials give one express explanation for the enactment of section 19 of the Act. That is, that it was necessary to give the legislator power to go further than the Directive in respect of pay, because pay was not covered by the Directive. As I understood his submissions, there is nothing in the contextual materials which suggests that the section 19 power was thought necessary for any other purpose, still less that, in making the Regulations, the Secretary of State intended to change the test for causation which is expressed in the Directive. Mr Jones did not refer us to any such material in his submissions.

The Regulations

[58]The relevant regulations are regulations 2, 5, 6, 7 and 8. Edis LJ has already quoted, or referred, to some of regulations 2 and 8, and quoted regulation 5. I will quote regulation 2 more fully, and also refer to regulations 6, 7 and 8(6).[59]Regulation 2 defines ‘full-time worker’, ‘part-time worker’ and ‘comparable full-time worker’. A full-time worker is a ‘comparable full-time worker’ in relation to a part-time worker if ‘at the time when the treatment which is alleged to be less favourable to the part-time worker takes place,(a) both workers are – (i) employed under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works at or is based at a different establishment and satisfies those requirements’.[60]Regulation 6(1) gives a worker, if he considers that his employer might have infringed his right under regulation 5(2), a right to ask his employer for a ‘written statement giving particulars of the reasons for the treatment’. Any such statement is admissible in proceedings (regulation 6(2)). If it ‘appears to the tribunal in any proceedings’ under the Regulations ‘(a) that the employer deliberately, and without reasonable excuse’ has not provided such a statement, or ‘(b) that the written statement is evasive or equivocal’, the tribunal may draw ‘any inference which it considers just and equitable to draw, including an inference that the employer has infringed the right in question’.[61]Regulation 7 is headed ‘Unfair dismissal and the right not to be subjected to detriment’. By regulation 7(1), an employee who is dismissed ‘shall be regarded as unfairly dismissed for the purposes of Part X of [the Employment Rights Act 1996] if the reason (or if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3)’. Regulation 7(2) gives a worker a right not to be ‘subjected to any detriment by any act, or any deliberate failure to act, by his employer done on a ground specified in paragraph (3)’. Regulation 7(3) provides that ‘The reasons or, as the case may be, grounds, are …’. The reasons/grounds are, in short, various acts done to enforce the Regulations. The protection conferred by regulation 7(3) therefore resembles, but is not identical to, the protection against ‘victimisation’ which is conferred by section 27(1) of the Equality Act 2010.[62]Regulation 8 is headed ‘Complaints to employment tribunals etc.’ If a worker presents a complaint under regulation 8, ‘it is for the employer to identify the ground for the less favourable treatment or detriment’ (regulation 8(6)).

Comparable instruments

[63]The structure and provenance of Council Directive 99/70/EC (‘Directive 2’) are similar. Directive 2 concerns fixed-term work. Clause 4 of the Framework Agreement annexed to Directive 2 is headed ‘Principle of non-discrimination’. Clause 4.1 provides, ‘In respect of employment conditions, fixed-term workers shall not be treated less favourably than comparable permanent workers solely because they have a fixed-term contract or relation unless justified on objective grounds’.[64]The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (2002 SI No 203) which implement Directive 2 are made under section 51(4) of Employment Act 2002, which is in similar terms to section 19 of the Act. Regulation 3 is headed ‘Less favourable treatment of fixed-term employees’. Regulation 3(1) and (3) are in similar terms, mutatis mutandis, to regulation 5(1) and (2) of the Regulations.[65]Later directives deal with other types of discrimination. Unlike Directives 1 and 2, they are the product of a conventional EC legislative process. I will refer to three only. Directive 2000/43/EC (‘Directive 3’) deals with discrimination on the grounds of race or ethnic origin. Article 2 is headed ‘Concept of discrimination’. Article 2.1 provides that ‘For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin’. Directive 2000/78/EC (‘Directive 4’) deals with equal treatment in employment and occupation. Article 2 is headed ‘Concept of discrimination’. Article 2.1 provides that ‘For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’. Those grounds are religion or belief, disability age or sexual orientation. Finally, Directive 97/80 (‘Directive 5’) deals with the burden of proof in sex discrimination cases. Article 2.1 defines the ‘principle of equal treatment’ as meaning ‘that there shall be no discrimination whatsoever based on sex, either directly or indirectly’.

The meaning of clause 4 of the Framework Agreement

[66]In my judgment it is clear that the test for causation in clause 4.1 is a narrow test. The important words are ‘solely because’. That phrase could not be clearer. That phrase is also used in Directive 2, which has a similar provenance, but that phrase is not used in other instruments about discrimination in employment, as my summary of the relevant provisions of Directives 3, 4 and 5 show. That clear meaning is not displaced by appeals to the reference in recital (11) to ‘eliminating discrimination against part-time workers’. That reference must be read in its full context, which I have quoted in paragraph 51, above. Recital (11) does not support the idea that the Social Partners had agreed specific measures which would eliminate such discrimination. But even if it did, the reader does not know what specific measures have been agreed without considering the actual words of those measures, and, in particular, the words of clause 4.1.Given the apparent difficulty of reaching agreement, and the context, which is fully described in the preamble to the Framework Agreement, there is every reason to give those words their natural meaning. They represent a compromise between competing factors, agreed by the Social Partners, after balancing their different interests.

The meaning of regulation 5(2) of the Regulations

[67]If it is supposed that the test for causation in the Directive is a narrow test, as I consider that it is, it was common ground that the Secretary of State could, in the Regulations, have relaxed that test. The question is whether the language of the Regulations shows that the Secretary of State had any such intention, by ‘specifying’ the relevant circumstances. It has long been recognised that a national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement (see, for example, Swift v Robertson [2014] UKSC 50; [2014] 1 WLR 3438, paragraph 20, per Lord Kerr). That principle is modified, to some extent, by the enactment of section 19, but it is still relevant. If the Appellant’s argument is to succeed, there must be a clear indication in the Regulations that the unusually strict test for causation in clause 4.1 has been relaxed. In other words, what has the Secretary of State ‘specified’ about that aspect of the relevant circumstances?[68]There is no such indication; on the contrary. The right conferred by regulation 5(1) ‘applies only if (a) the treatment is on the ground that the worker is a part-time worker’ (regulation 5(2)) (my emphasis). The regulations refer to ‘the reasons for the treatment (regulation 6(1)) and distinguish between the formula ‘the reason (or if more than one, the principal reason)’ (regulation 7(1)) and the formula in regulation 5(2), and between that formula and the formula used in regulation 7(2). The draftsman knew that there could be more than one reason, or ground for, treatment, and chose to refer to one ground in regulation 5(2), and to use the phrase ‘only if’. For those reasons, it is clear that the test for causation in the Regulations is the same, narrow test as the test in clause 4.1 of the Framework Agreement. But even if that were not clear, there is absolutely no sign in the language of regulation 5(2) that the draftsman intended the test for causation to be less strict than the test in clause 4.1. The reasoning in

McMenemy

[69]The claimant in McMenemy worked part-time for a company which provided business support seven days a week. He worked on Wednesdays, Thursdays and Fridays. He was not given time off in lieu of public holidays which happened to be on a Monday. His manager worked full-time, Tuesday to Saturday. He did not get such time off in lieu, either. The respondent’s standard contract of employment provided that an employee did not get time off in lieu of a public holiday on a Monday unless his normal working week included Mondays. The ET dismissed the claimant’s claim under the Regulations essentially because all full-time and part-time employees who worked on Mondays were treated in the same way, as were full-time and part-time workers who did not work on a Monday.[70]The EAT held that the ET had been entitled to ‘construct a hypothetical employee’. The ET was entitled to do that when ‘considering the second question, the “reason why” question’. It had been ‘obviously open to’ the ET to conclude that a full-time employee who did not work on Mondays would have been treated to [sic] the same as the claimant as regards Monday holidays. That was clearly powerful evidence in support of the respondents’ case that the reason for the claimant’s treatment and the ground on which he received it was nothing to do with his part-time status…the ground for the respondents’ decision to refuse the claimant’s request for days off in lieu of Monday holidays was not that he was a part-time worker but that he did not work on a Monday. The [ET] were entitled to find that that was their reason and did so’.[71]In paragraph 3 of its opinion, which was delivered by Lord Nimmo Smith, the Extra Division of the Inner House of the Court of Session (‘the Court’) considered the words of clause 4.1 of the Framework Agreement in English, French and German. The French and German versions ‘reinforce the impression that would be gained from a straightforward reading of the English version that “solely” does indeed mean that the less favourable treatment mut be for the reason that they work part-time and for that reason alone’.[72]The parties had agreed that the Regulations ‘should be construed consistently with the Directive and should be given a purposive construction’. The Court quoted paragraph 54 of the judgment of Court of Justice in Wippel v Peek & Cloppenburg GmbH &Co KG (C-313/02) [2005] ICR 1604: ‘Clause 4 of the Framework Agreement …precludes part-time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part-time unless different treatment is warranted on objective grounds’ (paragraph 5). The EAT had dismissed the claimant’s appeal.[73]In paragraph 6, the Court recorded the parties’ agreement that the cases referred to in paragraph 5 established the correct approach to the construction of the Directive. ‘It was not suggested that the …Regulations went further than the Directive in conferring protection on part-time workers, or were intended to do more than bring UK law into line with community law’. It was necessary to consider whether there was ‘a causative connection between the discrimination complained of and the part-time nature of the worker’s employment…the prohibition is against the less favourable treatment of part-time workers…for the reason that they work part-time and for that reason alone’. The Court added that it was therefore necessary to investigate ‘the employer’s intention in so treating the part-time worker’. The Court quoted paragraph 11 of the EAT’s judgment in Gibson v Scottish Ambulance Service UKEAT 0052/04 (16 December 2004), and agreed with it. A part-time worker must ‘therefore establish that the employer intends to treat him less favourably on the sole ground that he is a part-time worker’. The Court referred to paragraph 54 of Wippel. ‘Additional reasons for construing the word ‘solely’ in this way are that… there is, first, no reference in the Directive to indirect discrimination, and secondly, different treatment, if established, may nevertheless be justified on objective grounds’.[74]In paragraph 13, the Court accepted that the claimant was treated less favourably than comparable full-time workers in his team who worked from Mondays to Fridays. The next question was whether that treatment was ‘solely because’ the claimant was a part-time worker. That required the Court to examine ‘the respondent’s intention: did they intend to treat him less favourably for the sole reason that he was a part-time worker?’ The ET and the EAT had answered that question correctly. ‘On an examination of the facts, the reason why [the claimant] received less favourable treatment than did a comparable full-time employee was through the accident of his having agreed with the respondents that he would not work for them on Mondays or Tuesdays’. It was legitimate ‘to consider hypothetical situations’ at that point, ‘in order to test the true intention of the respondents’. The Court described the effect of the evidence. The Court could see no reason to fault the reasoning of the ET or (‘especially’) that of the EAT (paragraph 14).

Sharma v Manchester City Council

[75]The respondent council was represented in Sharma but the claimants were not. The EAT was not referred to McMenemy. The case concerned a contractual term, Appendix 10, which the respondent applied to some, but not all, of its part-time employees. The ET dismissed the claims.[76]The appeal was a challenge to the ET’s conclusion that the claimants’ treatment was ‘not, or at least not solely, by virtue of being part-timers…’ (paragraph 27). The first ground of appeal was appendix 10 was unlawful because it discriminated against part-timers and the ET had not held that it was justified. The second ground of appeal was that the ET should have adopted a ‘but-for’ test; if the claimants had not been part-timers, they would not have been treated as they were. In any event, whichever test was adopted, there was no basis for a distinction between differentiating on the basis of part-time status and on the basis of a term which was only applied to part-time workers (paragraphs 36 and 37).[77]In paragraph 23 of the judgment, Elias P (as he then was), sitting with two lay members, quoted clause 4.1 of the Framework Agreement. He added, ‘That principle has been transposed into domestic law in similar, if more expansive terms, by regulation 5…’.[78]In paragraphs 29-31, Elias P considered Gibson. He noted that one issue in that case was whether the right test for deciding the ground of the less favourable treatment was ‘a but-for’ test or a ‘reason-why’ test. The EAT had accepted that the second was the correct approach. He then referred to the employer’s further argument, which was that the word ‘solely’ in the Directive means what it says. Elias P said that the EAT had not expressly approved that argument in Gibson.[79]The ET had considered the significance of word ‘solely’ in clause 4.1 of the Framework Agreement. The EAT in Gibson had accepted that the ET had to consider ‘the reason why’ test. The EAT had also commented on the respondent’s argument that the Regulations should be interpreted consistently with clause 4.1 That was said to involve ‘reading the concept of “solely” into the Regulations’ so that if the reason for the treatment was part-time status and something else, the claim ‘was bound to fail’. The EAT in Gibson did not directly approve the submission, but had appeared to agree with it (paragraph 31).[80]The ET in Sharma had considered that it was bound by Gibson. It understood Gibson to decide that the reason for the treatment must be part-time status alone, and not part-time status and something else. The less favourable treatment in that case was the application of Appendix 10 to some, but not to all, part-timers. The reason for the treatment in this case, the ET found, was part-time status, plus the fact the claimants had a particular kind of part-time contract. The ET therefore dismissed the claims.[81]The respondent had submitted in the EATthat the ET was ‘not influenced by the “sole reason” issue at all’. The EAT did not agree: it considered that the “sole reason” test had been decisive in the ET’s reasoning (paragraph 34).[82]In paragraphs 39-43, the EAT considered and rejected the respondent’s answers to ground 1. The only way in which the defence could succeed was that appendix 10 was not applied to all part-timers, and it could not have been adopted ‘solely because’ the group were part-timers, but because they were part-timers ‘of a particular category’ (paragraph 44).[83]Paragraphs 47-53 are headed ‘The “sole reason” issue’. The EAT had ‘no doubt’ that it was not legitimate to construe the Regulations as requiring that the part-time nature of a claimant’s work had to be the sole reason for the less favourable treatment. ‘In our judgment the reference to “solely” in [the Framework Agreement] is simply intending to focus upon the fact that the discrimination against a part-timer must be because he is a part-timer and not for some independent reason’ (paragraph 48). The EAT gave as examples an employer who discriminated against all part-timers over the age of 30 and of an employer who discriminates against all part-timers in factory A but not the part-timers in factory B. It asked rhetorically whether it could really be said that ‘because only some part-timers were selected for the less favourable treatment, the Directive (and by extension the Regulations) are not intended to be applicable?’ (paragraph 49). In paragraph 50, the EAT re-stated the question as an emphatic proposition. It added, ‘The fact that not all part-timers are treated adversely does not mean that those who are cannot take proceedings for discrimination if being part-time is a reason for their adverse treatment’. Once it is found that a part-timer was treated less favourably than a comparator full-timer, ‘and being part-time is one of the reasons’, that was enough ‘to trigger the Regulations’ (paragraph 51). The fact that Appendix 10 did not apply to all part-timers was not a defence. The appeal had to succeed on that ground alone. But the EAT went further; it was wrong to characterise the discrimination as being for more than one reason. ‘Properly analysed, it was only because the claimants were part-timers’ (paragraph 52).[84]In paragraph 53, the EAT added that a member state could give more favourable protection than that conferred by the Directive ‘and accordingly there is no need to read limitations in the Directive into the Regulations’. The EAT referred to section 19 of the Act.[85]The EAT declined to decide whether the right test was the ‘but-for’ or ‘reason-why’ test (paragraph 54). The EAT considered that, whichever was the right test, the claimants succeeded. It could not be ‘legitimate for’ the respondent ‘to contend… that there is a reason which is independent of the part-time status’ (paragraph 55). That was a ‘wholly artificial argument’ on the facts. It would ‘make a nonsense’ of the relevant protection if ‘the employer could successfully allege that differentiating between [part-timers] and full-timers on the basis of terms exclusively attributed to them was not discriminating against them on the basis that they were part-time. Take the case of an employer who does not give sick pay to part-timers but does to comparable full-timers. He surely would not be allowed to say that the basis of the distinction is the term of the contract, the part-timer not having the right to sick pay when the full-timer does’ (paragraph 57).[86]The EAT’s conclusion on ground 2 was that where the reason for the distinction is the existence of ‘the very term which is alleged to be the source of the less favourable treatment, and that term is exclusive to a group of part-timers, there is prima facie discrimination against’ them (that is, unless it is justified). The EAT also considered that it was ‘properly characterised as discrimination directed at them solely by reason of the fact that they were part-timers, and not just partly for that reason’. The subjective intention of the relevant manager was irrelevant (paragraph 58).

The relevant reasoning of the EAT in this case

[87]The EAT’s focus was the phrase ‘on the ground that’ in regulation 5(2)(a) of the Regulations. In paragraphs 42 and 43, the EAT lucidly explained that as the cases have developed, the issue about causation identified by the EAT in Gibson has been resolved. The ‘ground of the treatment complained of’ is the reason why it occurred. In deciding that question, in a case such as this, ‘it will be necessary to have regard to the mental processes of the relevant decision-taker’ and his or her subjective motive is irrelevant (paragraphs 42 and 43). In the EAT’s view, reasoning from other areas of discrimination law, was that the right approach to that phrase in regulation 5 was that part-time status must be an effective cause of the less favourable treatment, ‘even if not the sole cause of that treatment’ (paragraph 67).[88]The Framework Agreement did not lead the EAT to change that approach. Its purpose was to set out ‘minimum requirements’. It set a floor, not a ceiling. If the Regulations, made under section 19 of the Act, provided for a wider approach to causation than clause 4.1, there was ‘no requirement to reduce that protection’ (paragraph 70). In any event, clause 4.1 should not be ‘read as meaning that, in circumstances where’ his part-time status was ‘an effective cause of the less favourable treatment, protection is nevertheless lost if there is also some other factor that can be seen as part of the cause of the less favourable treatment in issue’. The EAT referred to paragraphs 48-49 of Sharma.[89]Nor did Wippel suggest otherwise (paragraph 69). Paragraph 56 of Wippel referred in general terms to the fact that prohibition on discrimination was ‘merely a particular expression of a fundamental principle of Community law, namely the principle of equality under which comparable situations may not be treated differently unless the difference is objectively justified’ (paragraph 70). ‘On analysis ...the correct approach to the phrase “on the ground that” in regulation 5(2)(a)…is…part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause’ (paragraph 71, original emphasis). The EAT could see no basis for ‘inserting the word “solely”…or the phrase “if and only if” into regulation 5(2)(a)…’. The phrase ‘solely’ in the Framework Agreement did not compel that conclusion, for the reasons given in Sharma. If the available protection were limited in that way, the collective experience of the members of the EAT suggested that its effectiveness would be limited. There was no reason, in any event, to see clause 4.1 as limiting ‘a wider protection allowed under domestic law….’. The concession recorded in paragraph 6 of McMenemy was wrong. Further, to the extent also that the ET had relied on subjective intention, it had also erred in law (paragraph 72, original emphasis).

Is the reasoning in McMenemy wrong?

[90]I have already explained my view about the correct construction of clause 4.1 and of regulation 5(2)(a). McMenemy adopts that approach. The concession recorded in paragraph 6 of the judgment was not wrong, but correct. There is some confusion in the judgment between ‘the reason why’ the treatment occurred and the respondent’s intention. I do not consider that that confusion is material to the essential reasoning of the Court on the test for causation, or that it undermines that reasoning. I next consider whether that view is changed by the reasoning of the EAT in Sharma or in this case.[91]I have, obviously, considered the judgment in Sharma with care, in deference to its expert author. Elias P did not have the benefit of the well-researched arguments which we have had, and the claimant was in person (admirably though she evidently argued her case). Elias P did not consider the range of EC measures to which I have referred. In the light of those materials, the emphatic reasoning in paragraphs 47-52 of Sharma, including the assertion in paragraph 48 and the examples which follow, is not convincing. Indeed, in his reply, Mr Jones had to accept that the examples were ‘imperfect’. It is correct (paragraph 53) that the Regulations could go further than the Directive, but Elias P did not explain how the language of regulation 5(2) shows any such intention (see paragraphs 77 and 84, above). Nor is the example in paragraph 52 persuasive; in that example there is clear less favourable treatment of part-time workers even on the ‘solely because’ test.[92]The reasoning of the EAT in this case is similar to, and partly based on, that of Elias P in Sharma. Again, given its author’s expertise, I have considered it very carefully. Again, one party (the respondent) was not represented. Again, the EAT does not appear to have been referred to the range of EC materials which, in my view, cast light on the meaning of clause 4.1. The EAT did not explain why, in effect, no weight should be given to the unusual phrase ‘solely because’. Nor did it convincingly explain why, if clause 4.1 means what it says, the language of regulation 5(2) shows that the Secretary of State intended to change the narrow test for causation in clause 4.1 (see paragraph 89, above).[93]It is clear from Directives 1-5 that the ‘general principle of equality’ has a range of different expressions in different contexts. In some contexts concepts of direct and indirect discrimination apply, in some not, and in some contexts, even direct discrimination can be justified; whereas in others, it cannot. The relevant principle of ‘non-discrimination’ or of ‘equality’ is also differently defined in different instruments. Three features of this EC protection, apart from the causation test, are striking, and show that it is narrower in other respects than the protection conferred in other contexts. First, there is no protection against indirect discrimination. Second, there is no scope for a hypothetical comparator. Third, this type of direct discrimination (like discrimination on the grounds of age, but unlike discrimination on the grounds of sex or of racial or ethnic origin) can be justified.[94]Those features are relevant and are of a piece with the unusually narrow test for causation in clause 4.1. The EAT’s appeal to ‘the general principle of equality’ referred to in paragraph 56 of Wippel does not therefore answer my concerns. One of the aims of the Framework Agreement was to achieve an acceptable level of legal protection for part-time workers which did not impose undue burdens on employers. The narrow test for causation, which makes it simpler to litigate such claims, and the limits to the concept of discrimination in this context, accord with that aim.

Conclusion

[95]For those reasons, I consider that the reasoning in McMenemy about the test for causation in the Regulations is correct.[96]I agree with Edis LJ that McMenemy v Capita Business Services Ltd was wrongly decided but that we should nevertheless follow it. In deference to the detailed and learned judgment of Elisabeth Laing LJ, who takes the opposite view about the correctness of McMenemy, I will briefly state my reasons.[97]The critical provision to be interpreted is Regulation 5 of the 2000 Regulations, which so far as material provides:- “(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker...... (2) The right conferred by paragraph (1) applies only if–(a) the treatment is on the ground that the worker is a part-time worker, and(b) the treatment is not justified on objective grounds.” (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds.”[98]“Only” is a similar word to “solely”, but this does not mean that Regulation 5(2)(a) is to be construed as if it read “the treatment is solely because the worker is a part-time worker”. The positioning of the word “only” in subparagraph (2) means that in order for the right not to be treated less favourably than a comparable full-time worker to apply, both the conditions set out in subparagraphs (2)(a) and (b) must be satisfied. One of these is that the treatment is “on the ground that” the worker is a part-time worker; the other is that the treatment is not justified on objective grounds.[99]It would have been easy enough for the draftsman of the 2000 Regulations to have used the words “solely because” in subparagraph (2)(a) if the intention was simply to reproduce verbatim the wording of Directive 97/81/EC, but that is not what was done. On the contrary, the draftsman used the phrase “on the ground that”. The phrases “on the ground that” or “on the ground of” were already established in discrimination law by the time the 2000 Regulations were made: see the EAT decision in O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School [1997] ICR 33. A teacher of religious education at a Catholic school was dismissed after becoming pregnant as a result of a relationship with a Catholic priest. The dismissal was held to be “on the ground of her sex” for the purposes of the Sex Discrimination Act 1975. Mummery P said that for a discrimination claim to succeed the claimant’s sex had to be the “effective and predominant cause”, or the “real and efficient” cause, of the less favourable treatment complained of; it need not be the only cause. This important decision is not mentioned, and presumably was not cited, in Gibson v Scottish Ambulance Service nor in McMenemy itself. On the contrary: in Gibson the majority opinion of the EAT, delivered by Lord Johnston, states that “as Regulation 5(2)(a) uses the word “ground” in the singular, it suggests that the treatment should be found to be on one ground only (whatever that ground may be)”. A greater contrast with O’Neill would be hard to imagine.[100]McMenemy does not appear to have been cited to the EAT in Sharma v Manchester City Council [2008] ICR 623. I accept that, as Elisabeth Laing LJ has pointed out, the appellant in Sharma was not represented before the EAT. Nevertheless, Elias P (as he then was) was a judge of formidable authority in employment law, and to my mind the reasoning in Sharma is entirely convincing, including its trenchant criticisms of the decision in Gibson that the part-time nature of the worker’s status had to be the sole reason for the discriminatory treatment. The EAT had “no doubt that this is not a legitimate construction of the Regulations”. They gave at paragraph 49 the simple example of an employer who decided to discriminate against all part-timers over the age of 30 where it could be said that there were two reasons for the discrimination. They went on to say that “in our judgment it is inconceivable that the Directive was not intended to outlaw such treatment (subject to justification)” and that “any other conclusion would wholly undermine the very purpose of the Directive”. This was followed by the EAT, HHJ Peter Clark presiding, in Carl v University of Sheffield [2009] 3 CMLR 21 and by the EAT in the present case.[101]We are not bound by the doctrine of precedent to follow decisions of the Inner House of the Court of Session or the Court of Appeal in Northern Ireland, but where either of those courts has given a decision on the meaning of a statutory provision applicable throughout Great Britain or throughout the United Kingdom it is highly desirable that this court should follow the previous decision and leave it to the Supreme Court to resolve the difficulties. That principle was established in the tax case of Abbott v Philbin [1960] Ch 27; [1961] AC 352 as one to be adhered to in the absence of what Lord Evershed MR described as “compelling reasons”. It was recently applied by this court in the context of social security law in Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156; [2024] KB 275. The Vice President, Underhill LJ, observed that the minimum requirement for a compelling reason must be that the second court believes that the first court’s decision was clearly wrong, but went on to say that “it will require more than mere disagreement with the decision of the first court to justify a refusal by the second court to follow it”. I do consider, with respect to Elisabeth Laing LJ, that the decision of the Inner House in McMenemy was clearly wrong, and seriously weakens the protection given to part-time workers under the 2000 Regulations. However, I agree with Edis LJ that we should nevertheless follow it in accordance with the Abbott v Philbin principle.[102]Accordingly, I would dismiss the appeal for the reasons given by Edis LJ.[103]This result will leave the law relating to part-time workers in an unsatisfactory state, with tribunals both north and south of the border now being obliged to follow McMenemy despite what I regard as its obvious defects. Only a decision of the Supreme Court (or an amendment to the 2000 Regulations) can resolve the problem. I therefore agree with Edis LJ that if the Appellant wishes to pursue an appeal to the Supreme Court we should grant him leave to do so.

Cited in 2 later judgments