Lucas Nacif to appear in an appeal concerning the PTWR

Lucas Nacif of Farore Law will be appearing on a pro bono basis (instructed through Advocate) in an Employment Appeal Tribunal (“EAT”) hearing on 16 January 2025 concerning the interpretation of regulation 5(2)(a) of the Part-time Workers Regulations 2000 (“PTWR”). In particular, the EAT will have to determine whether in order for the less favourable treatment complained of be “on the ground that the worker is a part-time worker”, the worker’s part-time status must be the “sole cause” or the “effective cause” behind the treatment.

Background

In this appeal, the Employment Tribunal appeared to have applied the “sole cause” test when it found that the Claimant’s cancellation of an overtime shift was not “on the ground” of his part-time worker status, since “the overtime was cancelled because the staff were not sure how to process it”. The Tribunal went on to state that this was simply a mistake but that this “does not mean that the reason for the treatment was the Claimant’s part-time worker status. The treatment was because of the Claimant’s unusual position of working under an Area Manager who did not hold his budget for his overtime”.

The sole cause test is favoured in the Scottish courts, with decisions such as McMenemy v Capita Business Services Ltd 2007 CSIH 25 holding that the less favourable treatment be for the reason that the Claimant works part-time and that reason alone.

This approach is entirely at odds with previous EAT authorities which held that the causation test under regulation 5(2)(a) PTWR is far broader and simply requires that the Claimant’s part-time work status be the “effective and predominant cause of the less favourable treatment complained of; it need not be the only cause”; see Carl v University of Sheffield 2009 ICR 1286.

The significance of this appeal is that if the EAT concludes that the “sole cause” test is the correct way of interpreting regulation 5(2)(a) PTWR, this has the potential of substantially undermining part-time worker protections. This is because the “effective cause” test (favoured by Carl) allows for there to be multiple causes behind the less favourable treatment. 

In practice, there will be multiple causes at play in a discrimination claim, which is why Tribunals adopt the “effective cause” test in victimisation, whistleblowing detriments and direct discrimination claims.

For example, if the “sole cause” test is applied than the Claimant in this appeal will not have a claim under the PTWR since the Tribunal found that the reason behind his overtime cancellation was because his colleagues were unsure how to process his overtime. The “sole cause” test is so stringent that a claim could only succeed if a Tribunal were to conclude that a Claimant’s overtime shift was cancelled simply because of their part-time status.

However, if the “effective cause” test is applied then a PTWR claim can succeed since a Tribunal can conclude that although the cancellation was attributed to a mistake, the effective cause behind this was the Claimant’s part-time worker status (which may have prompted the Respondent from making this mistake in the first place).

The mere fact that an overtime shift is cancelled because of a mistake does not preclude a Tribunal from finding that this is discriminatory under the “effective cause” test. As with victimisation, a Tribunal is required to examine the reason (whether conscious or subconscious) for the alleged discriminator’s acts. It is entirely possible that cancelling an overtime shift can amount to discrimination under the PTWR because the alleged discriminator’s subconscious motive for cancelling the shift took into account the fact that the individual was a part-time worker.

Comment

The approach in Carl is consistent with how Tribunals approach causation in other statutes, such as section 47B of the Employment Rights Act 1996 (“ERA 1996”), where for the whistleblowing detriment to be “on the ground that” the worker made a protected disclosure, it must be a “material factor in the employer’s decision to subject the claimant to a detrimental act” (see Fecitt v NHS Manchester 2012 ICR 372).

In a recent English EAT decision of Augustine v Data Cars Ltd 2024 EAT 117, Eady J noted that although the EAT in England were not strictly bound by Scottish decisions, there were strong reasons in favour of not departing from McMenemy, since the Court of Session Inner House is a higher court than the EAT and “pragmatic good sense” would suggest that the EAT should follow the Court of Session’s decision and that there is a “legitimate public interest” in consistency of approach between the English and Scottish Employment Tribunals.

Crucially, however, Eady J expressed great reluctance in adopting the Scottish approach. The judge noted in Augustine that, were it not for the McMenemy decision, the EAT would have adopted the effective cause test (as set out in Carl) for the following reasons:

• Other statutes that use words similar to “on the ground that” favour the effective cause test, such as section 47B ERA 1996. 
• The PWTD was intended to set minimum requirements across EU Member States. Nothing therefore prevents the Employment Tribunal from adopting a wider approach to causation than that specified in the PTWD. In any event, this would be consistent with the purpose of the PTWD which is to remove discrimination against part-time workers and improve the quality of part-time work.
• Eady J went on to state that “having regard to our collective practical experience of issues relating to part-time work, we are mindful that discrimination against part-timers will often take place because of factors associated with their part-time status; limiting the protection to less favourable treatment solely on the ground of their part-time work risks excluding such cases…”.

Although it is accepted that there are generally pragmatic reasons for there to be consistency between the English and Scottish Employment Tribunals, this is a case where the English EAT should depart from McMenemy / Augustine. As observed by Eady J in Augustine, there are strong arguments in concluding that McMenemy was wrongly decided and undermines the aim of the PTWD in removing discrimination against part-time workers. Were the EAT to dismiss this appeal and follow McMenemy / Augustine, then the only way to authoritatively resolve this is for the Court of Appeal to eventually decide on the correct interpretation of regulation 5(2)(a) PTWR 2000.