A Case Comment on Augustine (Appellant) v Data Cars Limited (Respondent)

The following is my own work, and no AI has been used in its making.

Extracted from a Word Document.

Introduction

Recently, the Supreme Court has issued a judgment on the rights of part-time workers, resolving an area of law which has been somewhat foggy. The importance of this case lies in the certain tension between a European Framework Agreement, domestic interpretation by a member state, and ever-present (near miasmic) ambiguity of legislation and quasi-legislation, which the legalistic types tend to beat into a dizzying non-intuitive pulp. Basically speaking, this case is to do with Clause 4.1 of a 1997 Framework Agreement, which the UK implemented domestically through the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, made under section 19 of the Employment Relations Act 1999. Clause 4.1 states that part time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds [3]. This may seem fairly straightforward. The question, however, is on that word ‘solely’. What the Supreme Court decided is that ‘solely’ does not quite mean ‘solely’ solely. In other (much needed) words, the cause of the discrimination of the part-time worker compared to the full-time worker does not actually have to be only because they are part-time. Merely, that it can be one amongst a number of effective causes [87].

My question then is —and I think the main take-away from this judgment— how can the Supreme Court divulge so obviously from our natural, common English meaning of the word ‘solely’ and of our language more broadly? I hope, with further inspection of this case, that may become a little more clear.

Some Facts.

Background.

Warren Augustine was employed by Data Cars Limited, a small private hire firm, as a driver from 2016. He worked fewer hours than the typical full-time driver. All drivers, regardless of hours worked, were charged a fixed weekly ‘circuit fee’ for access to the company's booking system. Because the fee was flat-rate rather than pro-rated to hours worked, Mr Augustine effectively paid a higher fee per hour driven than a comparable full-time colleague.

He brought a claim under regulation 5 of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, arguing this amounted to unlawful less favourable treatment on the ground of his part-time status.

Procedural History.

• The Employment Tribunal held that the fee was charged to generate revenue for the business, not because Mr Augustine was part-time, so there was no less favourable treatment ‘on the ground’ of part-time status. It also held that, even if there were, the claim would fail because part-time status was not the sole ground for the treatment.

• The Employment Appeal Tribunal and the majority of the Court of Appeal disagreed on both points: they considered part-time status plainly was at least a reason for the treatment, and that a ‘sole ground’ test was wrong in principle. However, they considered themselves bound by the Inner House of the Court of Session's decision in McMenemy v Capita Business Services Ltd [2007] CSIH 25, which had applied a sole-ground test.

• Mr Augustine now appeals to the Supreme Court.

  
  

Legal Issue.

Whether regulation 5(2)(a) of the 2000 Regulations — implementing Clause 4.1 of the Framework Agreement on part-time work (via Directive 97/81/EC) — requires a part-time worker to show that their part-time status was the sole cause of the less favourable treatment, or whether it is sufficient to show that it was an effective cause (i.e. one of the reasons) for that treatment.

Court’s Reasoning and Decision.

As some help, here are the relevant sections of the 2000 Regulations: Regulation 5(1) of the 2000 Regulations gives a part-time worker the right not to be treated less favourably than the employer treats a comparable full-time worker. However, by regulation 5(2) this right applies ‘only if— (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds.’

'The general approach to causation in claims of direct discrimination'

The Court began its reasoning by defining causation in direct discrimination cases. To do this, it needs to make out whether the phrase ‘on the ground [singular] that’ refers merely to one sole cause. If it does, the word ‘solely’ in the Framework Agreement would appear to take its lonesome natural meaning.

Discrimination cases have long been settled (section 1(1) of the Sex Discrimination Act 1975, and section 1(1)(a) of the Race Relations Act 1976) as ‘on the ground of’ a protected characteristic. Its protection is violated if the characteristic consciously or subconsciously influenced the treatment, or if the basis for the treatment was inherently tied to the protected characteristic. No reason can justify it; neither motive, intention, or purpose [39][40]. The court quoted Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501, in which he stated, ‘If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.’ [41]. By categorising the judgment as a direct discrimination case, the court broadened the protections offered to Mr Augustine as a part-time worker, but is this a direct discrimination case? There is no reason that can justify discrimination in law, yet the Framework Agreement and 2000 Regulations state quite plainly that objective justification can strike down the protection [1]. Despite this, the court made clear that the phrase ‘on the ground that’ has been used in domestic law in situations where a detriment, although not direct discrimination, has occurred, such as in section 47B of the Employment Rights Act 1996 [43]. Regardless, the phrase ‘on the ground that’ does not mean a sole cause; rather, it means an effective cause, and this has been authoritatively established in anti-discrimination rulings [44]. In short, if the ground taken has had a substantial influence or effective cause, direct discrimination would be inferred [44].

‘The EU and domestic caselaw concerning the Part-time Work Directive’

Clause 4.1 of the Framework Agreement simply states that employers cannot discriminate on the sole ground of part-time work, but this is not restrictive; there are always a multitude of reasons for a decision (as Lord Nicholls said, ‘Decisions are frequently reached for more than one reason.’ [41]), and the principle in EU law for equality is not awkwardly jammed between a pure definition of causa sola. If it was enforced in a kind of purist way, the Directive is made redundant, as the scope of where it could even apply is made so limited, and that old European principle of equality (for example, Title III of the Charter of Fundamental Rights of the European Union, becoming binding with the Treaty of Lisbon 2009) is so undermined [47][49]. Indeed, the Court of Justice of the European Union even concluded that in a case of a difference in treatment between some fixed-term workers (in a comparable circumstance to permanent workers) was not justified on objective grounds [52][53]. Domestically, there is no indication that the 2000 Regulations went beyond simply aligning UK law to EU law [57]. If the decision of the previous courts contradicted the established principle in European law of equality, and reinforced by CJEU caselaw, then protection from the unfavourable treatment of a part-time worker is not reduced in UK law [49][57].

‘The meaning of “solely because” in clause 4.1 of the Framework Agreement’

The court had to grapple with what ‘solely’ was meant to achieve in the context of protection afforded to part-time workers. Does it really mean the only reason given by employers subject to protection is whether the employee is part-time alone, or merely to rule out part-time status as been used by someone in a case when it is really only an incidental factor or insubstantial [62]? The main object to the court was the fact that the language used in the Framework Agreement  was not that all-inclusive language of a usual piece of anti-discriminatory legislation [64]. However, being the Framework Agreement came out of a negotiated compromise not subject to a typical legislative process, a strict interpretation is to be given some caution, and does not perfectly reflect the desire of a British interpretation of the Framework. Whatever the case, the bar is still higher than a traditional piece of anti-discriminatory legislation; there is no reference to indirect discrimination, the need for a comparator, and the allowance of objective justification for the employer [65]. The court found no CJEU judgment, nor piece or European legislation nor Convention, that could inform them of the meaning of ‘solely because’ sufficient for this context [66]-[70]. The court, therefore, decided it was unnecessary to provide a new specific definition, and ruled that the discussion of the meaning was, at any rate, unneeded anyway. It provided the reasons for this in the following section [71].

‘A conforming construction is not necessary’

The Court’s analysis was of the 2000 Regulations, which implemented the Framework Agreement into domestic terms. Within the Regulations, the conditions for protection against unfavourable treatment are laid out: regulation 5(1) “applies only if— (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds” (regulation 5(2)) [79]. In this, we have some explanation as to the court’s decision on the word ‘solely’: it makes no appearance in the 2000 Regulations at all. So, although Regulation 5(1)(2) of the 2000 Regulations are modelled broadly off the Framework Agreement, there is a discrepancy in the wording. It seems evident the Secretary of State relaxed the minimum standard set by the Framework Agreement: he did not use the word ‘solely’ [72][76]. The court can ensure that the UK meets a minimum standard, but, beyond that, member states have free reign to create a more favourable position to the part-time worker, as articulated by Lord Mance [73][74]. Furthermore, the Employment Relations Act 1999 is not limited to a formal implementation of EU law, but gives the Secretary broad enabling power to ensure part-time workers are treated as favourably as full-time workers, as far as regulations may specify. This gave the Secretary wide discretionary powers, in this respect, in domestic law [75]. Although argued, there is nothing to suggest that explicit intention is necessarily displayed in order for the Secretary of State to go further than the Framework Agreement [77]. With that objection pacified, the only thing to establish is whether the domestic legislation went further than the Framework. And, as has been found ([75][76]), the Secretary of State under the 2000 Regulations, and Parliament with the 1999 Act, appears to certainly go further than the minimum bar of the Framework [77].

‘The meaning of the causation test set by regulation 5(2)(a)’

The court states that the word ‘only’ in regulation 5(2) must be both “on the ground” of part-time status (a) (of regulation 5(1)) and not justified on objective grounds (b) (of regulation of 5(2)), not that unfavourable treatment must only be on the basis that the worker is part-time. The word ‘only’ is used solely to state that only these two conditions need to be satisfied, not that there is any exclusivity on the reason for an employers treatment of an employee being that they are part-time [81]. If wording were to conform to the ostensible meaning of wording of Clause 4.1 of the Framework Agreement, it would be something like the right to protection arises where the treatment “is only on the ground that the worker is a part-time worker.” [81]. Additionally, it was suggested that ‘ground’ (singular) suggests that the treatment should be found to be on one ground only for the right to protection [82]. However, regulation 5(2)(a) is directed at a single protected ground, namely part-time status; the word ground is therefore in the singular [82]. Additionally, Lady Simler ends with the ultimate thrust of the argument:

‘The fact that not all part-timers are treated adversely should not mean that those who are cannot take proceedings for discrimination if being part-time is an effective cause (or reason) for their adverse treatment.’ [85].

The court ends by saying that other factors may be relevant for calculation of compensation or justification for objective grounds, but that the existence of other factors or causes does not mean that the right not to be treated less favourably on the ground of part-time status does not arise, and it does arise [86].

A Structure to The Court’s Reasoning.

·       Previous court’s decision contrary to European Principles

·       then reaffirming the primacy of domestic legislation (i.e. the 2000 Regulation’s wording of the protection of part-time workers)

·       then clarifying the grammar of the 2000 Regulation’s wording as inconsistent with the idea the basis of the decision must solely be on the grounds of the fact they are part time (and without objective justification).

Analysis.

Does The Reasoning Hold Up?

After resolving some of the issues and questions presented to the Court, there appears to be an articulation of the points in favour of the judgment that are at the very core of the reasoning. These are seen in [85]. Here they are as a helpful summary:

1.      Clear language of domestic legislation

2.      Inherent protective purpose of the legislation, of which this unusually strict interpretation of a domestic integration (to give effect to) of a European law damages the ontological purpose of the law.

3.      Contrary to standard approach of causation in discrimination cases

4.      This risks uncertainty and unreasonable outcomes.

Tension and Unresolved Questions.

There remains some tension which this judgment leaves. The obvious question is how far will this judgment go? To what degree can something be considered an ‘effective cause’? Will this now —because of the more intangible nature of ‘effective cause’ over the concrete ‘sole cause’— rely on the sympathies of an emphatic judge? Does this expose a fault in our legal system? Lady Simler herself states ‘It is unclear why the word “solely” was included in clause 4.1 of the Framework Agreement and what it was intended to achieve.’ [62]; is this how our law is decided? Can our caselaw also be influenced, as was reasoned, by a European ‘principle’ of equality that this Framework, despite surely making up part of the body of European principled judgment, supposedly contradicts? Should this even be the case in British law?

And what about some of the court’s reasoning?

Was Liang LJ actually wrong to infer that a domestic regulation needed to directly address the ‘unusually strict’ wording of a European Agreement? Could the courts, if they wanted to, easily dissent from the words of Lord Mance —of whom Lady Simler quoted? There is certainly no statute which decrees that the Secretary of State doesn’t need to declare whether a regulation would go beyond a European Directive or Agreement. Is the ‘done thing’ simply an absence of a judge caring to set any precedent (indeed, the court did not set a precedent by deciding it was ‘not necessary’ to create a definition of ‘solely’ within the context of this case in [71])? Could a judge just as easily declare the need for this provision of the Secretary of State?

Are we at risk of judges excluding definitions of simple words until it suits them? We saw some view of this in the ‘The meaning of “solely because” in clause 4.1 of the Framework Agreement’ section, particularly in [69]. Lady Simler, in her comparisons of the legal uses of ‘solely because’ in EU law, ruled that the wording of the Framework Agreement did not ‘correspond precisely’ with article 5 of the International Labour Organisation Convention, thus striking it down as an adequate definition. Here is the wording of article 5: ‘Measures appropriate to national law and practice shall be taken to ensure that part-time workers do not, solely because they work part time, receive a basic wage […] lower than the basic wage of comparable full-time workers[…]’. Here is the Framework Agreement: ‘In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds’. I find it, ironically, a little too tenuous a link for Lady Simler. Now, stronger evidence is presented both before and after this paragraph (particularly [70], where she emphasises the absence of ‘objective grounds’ in article 5, which does change how the definition is orientated and contextualised), but it is somewhat shocking that this is genuine reasoning used in the Supreme Court, however well-reasoned the judgment and however distinguished Lady Simler is —indeed, however much I even agree with the judgment. Having read the two definitions, is the discrepancy major enough to declare the use of the word ‘solely’ in article 5 incompatible with the Framework Agreement, given that it is unused by the court? I think that it would not be unreasonable to say no.

Practical Effect.

In jurisprudence, we may fret at the perversion of our common tongue with jargon and legal twist. Perhaps this judgment relies too heavily on grammatical inference and put us in a further pit of linguistic technicality rather than core legal reasoning [81] (e.g. Lord Bingham’s use of the infamous example of the Banking Act 1979 Appeals Procedure (England and Wales Regulations 1979: ‘Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations’). And perhaps this kind of confusion explains why the court of first instance and court of appeal both came to differing conclusions about this case to the Supreme Court. However, I feel this judgment, at its centre, has used a sound body of evidence and reasoned with it well. This is the right decision. Its distinction between the domestic implementation and the original European Framework provides a strong grounding. The Court successfully argues that the 2000 Regulations do not need to qualify the ‘unusually strict’ Framework Agreement, and can go beyond what is only a minimum requirement of member states, and it does not need to be spelled out where the domestic legislation goes beyond the original, lest we explain the purpose of every other word [77]. The Secretary of State was given this power to go beyond and set a standard beyond the minimum requirement. Additionally, the court demonstrated how a denial of the appeal would impugn unnecessarily the rights of part-time workers in [85]. The inconvenience to an employer of a part-time worker will mean that discrimination will occur in association with it, so limiting the protection to less favourable treatment solely on the ground of part-time work risks excluding many cases where the part-time nature of the work might be the effective, but not the sole, reason for that treatment. The court used a cutting example to demonstrate this:

 ‘an employer who denies a particular benefit to all “women over 6 feet tall” will mean that a tall woman who suffers the disadvantage does so for two reasons: her sex and her height. Under anti-discrimination law as it has developed, there would clearly be discrimination on the ground of sex because sex is an effective cause of the treatment, albeit not the sole cause.’

This clearly shows a practical limitation of the previous courts’ ruling. In this way, the Supreme Court promotes a reasonable interpretation of the need of an effective cause and not a sole one, which would neither appear as the intended meaning of the 2000 Regulations nor in the spirit of anti-discrimination law, even though it is certainly a more qualified and calibrated piece of anti-discrimination legislation [65].

Conclusion.

The decision was right on its resolution for Mr Augustine, but, perhaps, it does represent a move within the courts of a somewhat ethereal law over what might otherwise be a clear linguistic boundary —that being ‘solely’. In this particular case, the reasoning was comprehensive and sound, but that is something rather uncoupled with a now bolstered effort towards an opaque judiciary; for instance, those unresolved tensions mentioned earlier, of tenuous reasoning and judges actually setting the boundaries in which our Parliament can realistically legislate. Does this infringe upon the principle of sovereignty which underlies Parliament? It could certainly be argued so. As Lord Reid said, ‘But we do not believe in fairy tales any more. So we must accept the fact that for better or for worse judges do make law, and tackle the question how do they approach their task and how should they approach it’. This issue of the law and her ‘hammering into shape’ words’ natural meaning has hardly been an infrequent player in caselaw; just recently, in other case I have analysed —the Afzal case, the meaning of the word ‘disregarded’ was debated to great lengths. Of course, however, we are sensible enough to realise that it is not a simple definition being discussed; rather, it is what it could mean in the legal context of a statute or ruling and appropriately fitting to the needs of the particular case at hand. The court has made a well-reasoned and well-backed judgment, but this case continues to raise questions on the logical supports under which judges recruit their conclusions. I have a certain feeling those grounds will get shakier as common words’ definitions are recontextualised and convoluted from one case to another, as we have seen here. Perhaps we should take a step back and rethink the framework.