Augustine v Data Cars Ltd

The Appellant contended that the proper approach to causation under Regulation 5 of the PTWRs was that set out by the EAT (per Elias P) in Sharma v Manchester City Council [2008] ICR 623, and endorsed by the EAT below, namely that less favourable treatment under the PTWRs will be made out if a worker’s part-time status is an effective cause, even if not the sole cause, of the less favourable treatment in question. The Respondent contended that the correct approach was as set out by the Inner House of the Court of Session in Scotland in McMenemy v Capita Business Services Limited [2007] IRLR 400 (being a Court of equivalent appellate hierarchal status within the overall UK legal system to the Court of Appeal of England and Wales), namely that it was necessary for the worker to establish that the worker’s part-time status was the sole cause of the less favourable treatment. In the judgment of the Court of Session in McMenemy (on appeal from the EAT sitting in Scotland) this flowed from the use of the word “solely” in the PTWD. The EAT (per Eady P) in the present case had felt bound to apply McMenemy whilst doubting its reasoning.

The Court of Appeal unanimously dismissed the appeal, for differing reasons, and granted the Appellant permission to appeal to the Supreme Court.

Elisabeth Laing LJ held that the McMenemy was correctly decided and disagrees with the analysis of Elias P in Sharma and Eady P below in the present case. In Elisabeth Laing LJ’s judgment, the PTWRs are to be interpreted as reflecting a limited intervention made by the PTWD embodying a negotiated agreement reached between organised labour and employer organisations, requiring sole causation to be established.

Edis and Bean LJJ consider that the decision in McMenemy was wrongly decided and approve the analysis of Elias P in Sharma and Eady P below in the present case, endorsing the EAT’s analysis in those decisions that the PTWRs are to be construed as providing for a test of effective rather than sole causation. In light of the decision of the Court of Appeal in Jwanczuk v SSWP [2023] EWCA Civ 1156, judgment in the appeal from which to the Supreme Court is awaited, and applying the earlier authority of Abbott v Philbin [1960] Ch 27 and [1961] AC 352, Edis and Bean LJJ considered it nevertheless appropriate to apply McMenemy in the interests of a single consistent approach to the proper interpretation of the PTWRs (applicable in England, Wales and Scotland), leaving it to the Supreme Court to resolve the conflict in the authorities for the three nations.

In light of the judgment of the Court, the decisions of the Employment Appeal Tribunal hearing appeals from English Employment Tribunals in Sharma and Carl v. University of Sheffield [2009] 3 CMLR 21 are no longer to be followed, and Employment Tribunals throughout England, Wales and Scotland (and the Employment Appeal Tribunal, wherever sitting) are presently to follow McMenemy on the proper approach to establishing causation under the PTWRs.

Tristan Jones KC acted pro bono for the Appellant, Warren Augustine, instructed by Advocate.

Tom Mountford acted pro bono for the Respondent, Data Cars Limited, instructed by Mishcon de Reya.

The full judgment is available here.