The Claimant was a private hire driver, employed by the Respondent. The ET found he was a part-time worker for the purposes of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”). The ET rejected, however, the Claimant’s claim that, by imposing a flat rate circuit fee of £148 (which gave drivers access to the respondent’s database), the Respondent had treated him less favourably as compared to his full-time comparator; in the alternative, the ET further held that the claim must fail as any less favourable treatment was not solely on the ground that the claimant worked part-time. The Claimant appealed.

The EAT allowed the appeal in part. The ET had erred in its approach to the question of less favourable treatment, failing to take into account that, applying the pro rata temporis principle under the Part-Time Worker Directive 97/81, the Claimant was paying a higher circuit fee than his full-time comparator when considered as a proportion of his hours worked (British Airways plc v Pinaud UKEAT/0291/16, and [2018] EWCA Civ 2427 applied), and/or that he was taking home a lower hourly rate of pay, once a pro rata reduction (pursuant to regulations 5(3) PTWR) was allowed for the circuit fee. The alternative basis for the ET’s decision was also flawed, as it had erroneously had regard to what it found to be an absence of intention by the respondent to treat the claimant less favourably because he worked part-time; that was irrelevant (see R (oao E) v Governing Body of JFS and ors [2009] UKSC 15). Following the decision of the Court of Session (Inner House) in McMenemy v Capita Business Services Ltd [2007] CSIH 25, [2007] IRLR 400, however, it could not be said that the ET had erred in requiring that the less favourable treatment was solely on the ground that the claimant was a part-time worker.