Augustine v Data Cars Limited

Facts

The appellant, Warren Augustine, worked as a private hire driver employed by the respondent, Data Cars Ltd, a small business, in 2016. He worked on average 34.8 hours per week, while drivers generally worked over 43 hours per week on average, some 60 or more. All drivers, whether full or part-time, paid a fixed weekly "circuit fee" of £148 to access the respondent's booking dispatch system, irrespective of hours worked, with the result that those working fewer hours paid more per hour to drive and took home less pay per hour. Mr Augustine complained that this was less favourable treatment as a part-time worker contrary to regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The employment tribunal (Employment Judge Mary Siddall) found that he was a part-time worker with a valid comparator working over 90 hours a week, but dismissed the claim: treating all workers alike was not less favourable treatment, and in any event the fee was charged to enable the respondent to earn revenue, so part-time status was not the sole ground. The Employment Appeal Tribunal overturned the finding on less favourable treatment but, considering itself bound by McMenemy v Capita Business Services Ltd, dismissed the appeal on causation. The Court of Appeal, divided, also dismissed it.