Mishcon de Reya's Employment team has advised the successful Respondent in a Court of Appeal dispute over the proper approach to causation in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWRs).
Background
The Appellant, a part-time worker, alleged that less favourable treatment was caused by his part-time status, contending that “effective cause” (rather than “sole cause”) should be sufficient to trigger protection under Regulation 5 of the PTWRs. By contrast, the Respondent argued that, following the McMenemy v Capita Business Services Limited IRLR 400 decision in the Scottish Court of Session, part-time status must be the sole cause of any less favourable treatment.
Judgment
The Court of Appeal unanimously dismissed the appeal, concluding that McMenemy continues to govern the proper test for causation under the PTWRs (i.e., sole causation), but for differing reasons. Elisabeth Laing LJ found that the PTWRs, based on a Europe-wide agreement, require the part-time worker to show that part-time status alone caused the treatment in question. In contrast, Edis and Bean LJJ stated that McMenemy was wrongly decided in principle but applied it to maintain consistency across England, Wales, and Scotland until the Supreme Court provides further clarity.
Impact
As a result of this decision, English and Welsh Employment Tribunals, along with the Employment Appeal Tribunal hearing appeals from those jurisdictions, are directed to follow McMenemy (as the Employment Tribunals in Scotland and the EAT hearing appeals from Scottish ETs is already required to do as a matter of binding precedent). Other EAT judgments aligning with the “effective cause” approach are therefore no longer to be followed. Permission to appeal to the Supreme Court has been granted, and a final resolution on the causation test under the PTWRs is eagerly awaited.
Mishcon de Reya's Role
Mishcon de Reya was proud to represent Data Cars Limited in successfully defending the appeal. The judgment underscores the importance of consistency in statutory interpretation across jurisdictions in the United Kingdom and highlights the delicate balancing act between European-derived worker protections and the precise wording of UK regulations. The appeal to the Supreme Court has the potential to reshape this area of employment law and is one that practitioners will watch with keen interest
Tom Mountford of Blackstone Chambers acted for Data Cars Limited, instructed by Robert Lewis, Daniel Gray and Lucy Ellis of Mishcon de Reya.