Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant worked as a private hire driver employed by the respondent. The claimant had had a series of other claims against other respondents relating to employment status relating to driving jobs.
The claimant was found to have been a part-time worker and the issue arose was whether the claimant was treated less favourably on the basis that there was a flat rate circuit fee of £148 per week to access the respondent’s database and obtain bookings. The claimant argued that he was treated less favourably than a full-time comparator.
Outcome:
At first instance, the Tribunal found that the claimant was not treated any less favourably on the grounds that he worked part-time. It was not solely on that basis. The claimant appealed to the EAT. The EAT outlined that the Tribunal had erred in how it dealt with the question of what constituted less favourable treatment as it had failed to take into account the requirement to apply the pro rata temporis principle within the Directive. To this end, the claimant was paying a higher fee compared to his full-time comparator when considered as a proportion of the time spent working. This, in turn, led to a lower hourly rate of pay when the fee was considered. The Tribunal had considered the intention of the respondent and that there was an absence of treating the part-time worker less favourably. However, that was considered irrelevant.
On the point of whether it had to be sole reason the Tribunal referred to the Scottish Court of Session decision in McMenemy v Capita Business Services where it was held that the Tribunal did not err in requiring that the less favourable treatment was solely on the grounds that the claimant was a part-time worker. The EAT holding that whilst it was not bound to follow that decision it had to be strongly considered considering the EAT was Great Britain wide and the decision in McMenemy was made by a superior court.
Practical Guidance for Employers:
This decision outlines how part-time workers who may be required to pay a fee are needed to ensure they are not disadvantaged compared to their full-time colleagues. This was clearly put through the focus on whether it would lead to a lower hourly rate of pay when comparing the part-time worker to the full-time worker. Employers should be mindful of this when there is a requirement for some payment from the workers, as it was here to access the system to obtain bookings.
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