Written By Laura Brennen
Part-time workers are a cornerstone of the retail industry. Around 1.5 million retail employees work part time, one of the highest proportions of part-time workers in the UK, according to the British Retail Consortium.
From students seeking flexible hours to parents balancing work with caring responsibilities, part-time roles are integral to the retail workforce, suiting both staff and their employers.
However, a recent Court of Appeal ruling may have significant implications for how retailers structure their employment practices.
In a case involving a part time taxi driver, judges sided with the taxi operator when the part time driver had to pay the same weekly fee as full-time colleagues to access the company database.
The court ruled in favour of the taxi business, but judges were divided. The disagreement stems from recent case law have which has produced two conflicting tests for unfair treatment, leaving judges questioning part time rights.
The ruling in the taxi case is likely to be challenged in the Supreme Court, whose ultimate decision will impact every retailer in the country that employs part timers – particularly when making dismissal decisions.
What the law says
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 state that part-time workers must not be treated less favourably than full-time colleagues due to their part-time status.
This poses the question: whether unfair treatment happened because someone works part-time. In many cases, it can be difficult to prove this connection.
Different courts have taken different approaches to resolving this, creating uncertainty over what evidence is needed, which has resulted in two different tests to prove unfair treatment.
According to one test, part-time status need only be “one of the reasons” for the less favourable treatment. The other, stricter test requires that being part-time be the “sole cause” of any less favourable treatment, setting a high bar for claimants.
As interpretations of the rights of part-time workers continue to evolve through court decisions, this creates uncertainty for both employers and employees, which is particularly unwelcome for retailers at a precarious time for the industry.
The taxi case and how it impacts retailers
In the taxi case, the part-time driver argued the obligation to pay the same database access fee as his full-time colleagues was unfair because, as a proportion of his earnings, he was paying more than full-timers.
The Employment Tribunal initially dismissed the claim, saying the fee applied equally to everyone. The Employment Appeal Tribunal then found the fee could amount to less favourable treatment but still dismissed the appeal, applying the strict “sole cause” test. Finally, the Court of Appeal upheld the decision but expressed doubt about which test was correct.
Although the case itself is about taxi drivers, the way the law is applied directly affects all part timers and is being watched closely by in-house lawyers and HR teams in the retail industry.
For now, the stricter “sole cause” test remains the law, but this could change if the Supreme Court decides to hear the case.
Under the current position, however, part-time workers must prove their part-time status was the sole reason for any less favourable treatment, making successful claims more difficult.
While the legal position develops, retail businesses should consider reviewing policies to examine how part-time and full-time workers are treated in practice, particularly around benefits, training opportunities and career progression.
There should be assessments over neutral policies (like flat-rate fees or charges) and whether these disproportionately affect part-time workers. Decisions affecting part-time workers must have clear justifications. Retailers must also stay informed about legal developments, particularly any Supreme Court decision on the matter.
Retailers employing large numbers of part-timers should prioritise fair treatment regardless of which legal test ultimately prevails and keeps the supreme court case on their radar to best prepare for any litigation or changes to rules.
Laura Brennen is an associate in the People, Reward and Mobility practice at Dentons