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Employees and beyond

The Equality Act provisions on disability discrimination at work cover not just employees but also others who are not genuinely self-employed, unless they can substitute someone else to do the work. The armed forces are excluded.

Summary

Employees/workers

Special cases

Employees/workers

In summary

Claims under the Equality Act are not limited to 'employees' in the narrow sense. 'Employee' in the Equality Act is given an extended meaning close to that of 'worker, which is an intermediate category between 'employee' and fully 'self-employed' and is entitled to some but not all employment rights: see below Three types of employment status.

In summary, the basic requirements to be a worker and to fall within the Equality Act seem to be:

  1. the individual provides their services as part of a business undertaking carried on by some-one else, rather than carrying on a business undertaking on their own account (below 'Worker': must be part of someone else's business); and
  2. the contract must oblige the individual to perform the services personally, which means that a right to substitute someone else to do one's work prevents one from being a worker unless the right is sufficiently limited (below Right of substitution).

Three types of employment status

There are bascially three categories of people in employment law:

1. 'Employee'

This includes the typical person working set hours, x days a week, normally at the employer's premises, though it also extends wider than this. Employees have full employment rights, for example only employees can claim unfair dismissal or statutory redundancy pay. They also have the rights of 'workers' (below).

The distinction between 'employee' and 'worker' (below) is not really important for the Equality Act, since workers can also claim under the Equality Act.

2. 'Worker'

'Worker' includes, as well as employees, a person who is part of someone else's business rather than running their own. For example many people working on a zero-hours or casual basis are likely to be workers, though it depends on the facts.

Someone who is a 'worker' but not an employee is entitled to a more limited set of employment rights, including the right to claim under the Equality Act. 'Workers' also have rights to eg the national minimum wage (including living wage), paid holiday under the Working Time Regulations, and whistleblowing protection.

3. 'Genuinely self-employed',

This is not a legal term. but is a fair way to describe people running their own business who are not 'workers', and so normally have no employment rights. (There are always exceptions, eg whistleblowing rights are extended to some who are not 'workers', and on the Equality Act see below Extension beyond employees/workers.)

'Worker': statutory definitions

Whether someone can claim under the employment provisions of the Equality Act usually depends on whether they are a 'worker' (category 2) rather than genuinely self-employed (category 3), so that is what we focus on.

The Equality Act says its employment provisions apply to an 'employee', but that is given an extended meaning close to the concept of 'worker'. 'Employment' as defined in the Equality Act includes "employment under ... a contract personally to do work" (s.83(2) EqA). One might think this includes any self-employed person who has an obligation to perform work personally, but the Supreme Court in Jivraj (below) held that it does not include an independent supplier of services.

Jivraj and subsquent cases are tending to align the Equality Act test with that for a 'worker'. 'Worker' is defined in various places including s.230(3) Employment Rights Act 1996. Any 'employee' is a worker, but 'worker' also includes, broadly, someone working under a contract "whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual".

Is there any real difference between the Equality Act test and the 'worker' test? In 2017 in Pimlico Plumbers (below) the Court of Appeal considered together the question of whether the claimant was an 'employee' within the extended Equality Act definition and a 'worker' within other legislation. Also the Supreme Court rather ran the two tests together in Bates van Winkelhof (below). It remains possible there may sometimes be a difference between the two tests (eg the 'subordination' element of the Equality Act test in Jivraj (below)), but any difference if there is one is currently unclear. On this page I treat them as effectively the same, with the basic requirements being that the individual is (1) part of someone else's business and (2) obliged to perform the services personally.

Note that there is an exception from the Equality Act for the armed forces, and in some cases of illegality, eg often an immigrant working illegally.

'Worker': must be part of someone else's business

The basic distinction was set out in a Supreme Court case in 2014:

'the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj [below] were people of that kind. The other kind are self-employed people who provide their services as part of a profession or business undertaking carried on by some-one else [ie 'workers'].'
Clyde & Co v Bates van Winkelhof (link to bailii.org), 2014, Supreme Court at para 25.

So a worker must provide their services as part of a profession or business undertaking carried on by someone else, rather than carrying on a business on their own account. (This is not enough in itself: a worker must also contract to perform services personally as to which see below Right of substitution.)

A recent example of a case where the court held someone was not really in business on their own account (ie not genuinely self-employed) and so fell within the Equality Act:

Pimlico Plumbers v Smith (link to bailii.org), Court of Appeal 2017
A plumber working as part of Pimlico Plumbers claimed disability discrimination under the Equality Act, and paid holiday under the Working Time Regulations (which use the 'worker' definition). He could decide when he worked, but wore a Pimlico Plumbers uniform and drove one of their vans with their logo.

The Court of Appeal upheld the tribunal decision that he was a 'worker' entitled to these rights. Having rejected Pimlico Plumbers' argument that the claimant had an unfettered right to substitute someone else to do the work, and having found that the claimant was contractually obliged to do a minimum number of hours a week, the employment tribunal was entitled to conclude that the degree of control exercised over the claimant and other factors were inconsistent with Pimlico Plumbers being a customer of a business run by the claimant.
Note: this decision is being appealed to the Supreme Court. As regards the obligation to work personally, there is more on this case below under Right of substitution.

Another prominent 2017 decision is Aslam v Uber (see below under Gig economy) in which the Employment Appeal Tribunal upheld a tribunal decision that Uber drivers in London were 'workers' entitled to employment rights.

A case falling clearly in the 'genuinely self-employed' category was Jivraj v Hashwani, which held that an arbitrator did not fall within the Equality Act. However the case is important as the one in which the Supreme Court established that the Equality Act does not apply to an independent provider of services not in a relationship of subordination with the recipient:

Jivraj v Hashwani (link to bailii.org), Supreme Court, 2011.
The Supreme Court held that an arbitrator did not fall within what is now s.83(2) Equality Act, and so was not protected by the employment provisions of the Act.

Under s.83(2) there must be 'employment' under a contract to personally do work. The Supreme Court applied the test in a European Court decision, Allonby. The Supreme Court said: "The essential questions in each case are therefore those identified in paras 67 and 68 of Allonby... namely whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services" (para 34). Independent providers would not be 'employed under a contract personally to do work' under what is now the Equality Act.

Without needing to decide any factual situation other than the case before it, the Supreme Court commented it would be surprising if a customer who engages a person on a one-off contract as, say, a plumber, would be subject to the whole gamut of discrimination legislation. This was not to say that the rules may not apply to a plumber, or to a solicitor instructed to deal with a particular piece of legal business such as drafting a will, or a doctor consulted about a particular ailment, or an accountant consulted about a tax return. It would depend upon the application of the principles in Allonby to the particular case, not just on whether there is a contract to do work personally. (para 46)

A Court of Appeal case on the Equality Act, about court interpreters, has established that the lack of an umbrella contract between individual assignments can be a relevant factor pointing away from someone being within the Act, though it is by no means conclusive:

Secretary of State for Justice v Windle (link to bailii.org), Court of Appeal, 2016
The court upheld a tribunal decision that freelance interpreters in court could not bring an Equality Act claim for race discrimination. The interpreters accepted particular assignments for particular cases/witnesses. There was no umbrella contract. The court held the tribunal was entitled to take into account the fact that there was no umbrella contract, though the lack was not conclusive. The court said: '...the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense. Of course it will not always do so, nor did the [tribunal] so suggest. Its relevance will depend on the particular facts of the case'.

In Clyde & Co v Bates van Winkelhof (link to bailii.org), 2014, the Supreme Court held that a limited partner in a firm of solicitors was a worker. However a partner (limited or not) should fall within the Equality Act anyway under express provisions extending it to partners: below Extension beyond employees/workers.

Right of substitution

Under the Equality Act s.83(2), employment must be 'under ... a contract personally to do work'. So it does not include say a plumber who has a contractual right to send anyone he likes to do the work instead. Similarly the 'worker' definition in s.230(3) Employment Rights Act (and elsewhere) requires a contract under which the individual undertakes to perform work personally.

This is important because it gives companies a potential way to avoid their staff being 'workers', and avoid the consequential employment rights. It may be the reason why Deliveroo (below) gave its riders wide rights to have someone else do the work for them - the riders were then held (though not in a case forming a precedent) not to be 'workers' because the contractual rights were genuine and sometimes used, albeit rarely.

The case law was summarised by the Court of Appeal in Pimlico Plumbers (2017), which was considering both the Equality Act and the normal definition of 'worker'. The court said an unfettered contractual right to substitute someone else to do the work means one is not a 'worker', and not within the Equality Act s.83(2). If the contractual right to substitute is subject to conditions, it will depend on the extent to which the right is limited or occasional. The court gave some examples. In more detail:

84. ...Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.
Pimlico Plumbers v Smith (link to bailii.org), Court of Appeal 2017. Note: this decision is being appealed to the Supreme Court. See above for facts of the case.

Gig economy

Cases on the gig economy will very much depend on their facts. Also many decisions issued so far are subject to appeal.

Pimlico Plumbers (above) is a 2017 case where plumbers working with substantial independence but under the brand of 'Pimlico Plumbers' were held to be workers rather than genuinely self-employed.

More recently (November 2017) the Employment Appeal Tribunal reached a similar conclusion as regards Uber minicab drivers in London. Uber argued its drivers contracted directly with their passengers and Uber was just an agent, so drivers could not be workers. The EAT disagreed:

Aslam v Uber (link to bailii.org), Employment Appeal Tribunal (EAT), 2017
Uber drivers (in London) were held to be workers rather than genuinely self-employed, and therefore entitled to the national minimum wage and paid holiday. Uber argued the documents showed it was an agent providing technology services to individual drivers, who were each in business on their own account. It said the driver contracted with each customer. The EAT upheld the employment tribunal's decision that that the way the documents were expressed did not reflect the real situation. In reality Uber provided transportation services, and there was a contract between Uber London and the drivers whereby the drivers personally undertook work for Uber London as part of the latter's business of providing transportation services to passengers. Given there was such a contract, it was self-evident (said the employment tribunal) that Uber was not a customer of a business carried on by the driver. As in the Autoclenz case, the employer's 'carefully crafted documentation' did not reflect the reality of the contract between the parties.
Note: that is not likely to be the end of the story. Uber is appealing the decision - an application by it to 'leapfrog' direct to the Supreme Court has been turned down but the case will doubtless go to the Court of Appeal. Uber may also change its future contractual arrangements to try and have drivers not be 'workers'. You can also read the Full employment tribunal decision (pdf on judiciary.gov.uk) which was upheld by EAT.

It has also been reported that a sex discrimination claim under the Equality Act is being brought against Uber, on the grounds that it does not do enough to enable female drivers to turn down unsafe destinations. The courts may therefore directly consider the applicablity of the Equality Act to Uber drivers. Uber sexism case: London-based female driver issues sex discrimination proceedings against taxi company (link to independent.co.uk).

Contrast the Uber arrangements with the Deliveroo case. Here it was common ground that the riders delivering food from restaurants to customers (equivalent to the Uber drivers) had their contract with Deliveroo and were part of Deliveroo's business. However they were held not to be 'workers' because they had a genuine contractual right to substitute someone else to do their work:

IWGB Union & Roofoods Limited t/a Deliveroo (link to gov.uk), 2017, Central Arbitration Committee (CAC)
Deliveroo has riders deliver food from restaurants to customers, eg by bicycle or motorbike. Union recognition was sought for riders in the Camden area of London. For this the legislation required that the riders be 'workers' (the definition in this context is different but broadly similar to the normal one). In the Camden area riders were paid a fee per delivery. To become a rider one had to be 'onboarded' and trained. Riders could then log on to the app and show themselves as 'available' (or not) whenever they wanted, and could then accept or turn down any delivery job offered to them.

Deliveroo accepted that it had a contract with the rider, and was not a client of a business carried on by the rider. However it argued, and the CAC accepted, that the riders were not within the definition of 'worker' because under the contract with Deliveroo they did not undertake to perform services personally, since the riders had a genuine contractual right to substitute someone else to do their work. This was rarely done, though for example one rider let a friend take over from him when on holiday in return for a commission. Riders had the right to substitute someone else even after they had accepted a particular delivery. It was strange that Deliveroo allowed this, having required riders to undertake extensive training and pass a test. However the CAC's role was not to judge the good sense or otherwise of the business model. Nor did it matter if Delieveroo did this to prevent the riders from being classified as workers. All that mattered was the terms of the agreement, analysed in the holistic and realistic way set out in Autoclenz.
This case is interesting but not a binding precedent for Employment Tribunals.

This is not an appeal case, so not a binding precedent. However tribunals may take a similar approach, which does allow companies to craft their contracts so as to avoid their workforce being 'workers'. Tribunals will however be concerned to consider what is the genuine contract.

A further example of an employment tribunal decision (again not a precdent) where a claim to be a worker was successful

Gascoigne v Addison Lee, Employment Tribunal, 2017. Full decision (gov.uk)
A cycle courier working for Addison Lee was held to be a worker rather than genuinely self-employed. The claimant, although allowed a lot of flexibility, was under the direction and control of the company and not running his own business. The contractual documents did not reflect the true relationship. Link: Case Law: Gascoigne vs. Addison Lee (on napthens.co.uk).

Another example is the employment tribunal decision in CitySprint (link to clydeco.com) in 2016, full decision at www.clydeco.com/uploads/Blogs/employment/Dewhurst_and_CitySprint_1.pdf

Genuinely self-employed

An example of this is the Supreme Court decision in Jivraj (above) which held that arbitrators were not within the Equality Act.

Another example:

In Whittick v British School of Motoring, 2002, a person who stammers was turned down as a driving instructor, but failed in his disability discrimination case as he was looking to obtain a franchise. He was not an applicant for 'employment'.
Note: this might be decided the same way today but we do not know the detailed contractual arrangements. 

There may be some unusual situations where a paid worker is not within the legislation:

In Breakell v Shropshire Army Cadet Force (link to bailii.org), 2011, a paid worker was held not to be an 'employee' as defined in the Disability Discrimination Act 1995. There was no legal obligation to do or to provide work and payment was due only if the person worked (article on outlaw.com).

Possible changes in law

The Matthew Taylor review of modern working practices (link to gov.uk), published in July 2017, has recommended changes to these rules on employment status. The government announced in the Budget in November 2017 that it will publish an 'Employment status discussion paper' as part of the response to this review, exploring the case and options for longer-term reform to make the employment status tests for both employment rights and tax clearer. The announcement says: 'The government recognises that this is an important and complex issue, and so will work with stakeholders to ensure that any potential changes are considered carefully.'

Also in November 2017, two parliamentary select committees published a report and draft Bill aiming to reform the law on gig economy workers: 'Worker by default' status proposed in new gig economy Bill (link to personneltoday.com).

Extension beyond employees/workers

As well as employees, and others who are employed under a contract personally to do work, the Equality Act employment provisions on disability discrimination (sometimes with adaptations) extend to various other people, most importantly:

There are also provisions on occupational pension schemes and provision of insurance - e.g. BUPA - to employees (chapter 14 of Employment Code).

Methodist Conference v Preston (pdf, link to supremecourt.gov.uk), 2013, Supreme Court
A methodist minister was held not to be an employee, so he could not claim unfair dismissal. In the unusual circumstances, his relationship with the church was held not to be governed by a legal contract.
This case was not on the Equality Act so the court did not consider it, but the minister might fall within the Equality Act as an office-holder under s.49 EqA.

Former employees

Former employees are protected by the Equality Act after the end of their employment, if the discrimination or harassment 'arises out of and is closely connected to' the employment, and would contravene the Act had it occurred during the employment (s.108 EqA, Employment Code para 10.57-10.62).

A negative job reference given after the employment has ended can be a breach of the Equality Act, if discriminatory.

The same provision also applies to other workers, partners etc within the Equality Act after the end of the relevant relationship.

Victimisation

If one looks at the wording of the Equality Act, it might be thought that victimisation post-employment is not covered. However the Court of Appeal held in 2014 that it is covered. See Victimisation: Is post-employment victimisation covered? Yes

Reasonable adjustment duty

An employee has been dismissed, and appeals to the employer against the dismissal. The reasonable adjustment duty should apply to the internal appeal hearing, so as to enable the employee to have her say there, even if it takes place after the employment has terminated.
See below for technical issues on this.

The general wording of S.108(1) EqA seens to cover the reasonable adjustment duty where the matter arises out of and is closely connected to the employment.

Also s.108(4) EqA states that post-employment obligations include a duty to make reasonable adjustments 'in so far as [the employee] continues to be placed at a substantial disadvantage as mentioned in section 20'. The Equality Act Explanatory Notes (link to legislation.gov.uk), at para.354, give the example of reasonable adjustments to enable continued use of an in-house gym, where a disabled former employee's benefits include life-time use of the gym.

The word 'continues' in s.108(4) is somewhat odd. Does it mean the disadvantage must already exist at the end of the employment? For example, would it then cover an adjustment to an internal appeal hearing related to the dismissal, as in the example above? Surely that should be covered. 'Continues' seems unlikely to be interpreted in this way, especially since the wording in the previous Disability Discrimination Act 1995 had no such limitation. Also, it can be said that the general wording of S.108(1) EqA in any event covers the reasonable adjustment duty where the matter arises out of and is closely connected to the employment.

Exclusion of the armed forces

Service in the armed forces is excluded from the Equality Act employment provisions on disability (EqA Sch 9 para 4(3)). Employment as a Ministry of Defence civilian, without a rank, should still fall within the Equality Act. See below on 'employment services' related to the armed forces.

The Government has said the exclusion is

"because Armed Forces personnel need to be combat effective in order to meet a world-wide liability to deploy, and to ensure that military health and fitness remain matters for Ministry of Defence Ministers based on military advice, not for the courts."

An amendment challenging the exclusion was resisted by the Government in the House of Commons Committee on the Equality Bill (col 346-349, Hansard, Public Bill Cttee, 18th June 2009 (link to UK Parliament website)) and also in the House of Lords Committee (from col 1278 HL Hansard 25th Jan 2010 (link to UK Parliament website)).

In 2009 the UK government maintained its position by entering a reservation on service in the armed forces in its ratification of the UN Disability Convention - see Hansard, Statement 13th May 2009 'Disabled People: UN Convention' (link to parliament.uk) from where the quote above is taken.

Support for stammering in the armed services

There is a Defence Stammering Network which is an internal network of support for stammering in the armed forces: www.facebook.com/DefenceStammeringNetwork

There are also articles on the British Stammering Association website on serving in the armed forces with a stammer, see www.stammering.org/speaking-out/speaking-out-tags/armed-forces .

'Employment services' related to the armed forces

Work experience in the armed forces is also excluded from Equality Act protection (EqA Sch 9 para 4(3)).

'Employment services' include such things as careers guidance, vocational training, and employment agencies (EqA s.55, 56, Employment Code para 11.59). Some protection for 'employment services' relating to the armed forces is excluded by EqA Sch 9 para 5, and some is not. For example, it seems that 'employment services' relating to the armed forces are still within the Equality Act as regards the reasonable adjustment duty on employment service providers and harassment by them.

Various exclusions abolished in October 2004

Various jobs which used to be excluded were brought within the DDA, now the Equality Act, from October 2004. Examples are prison officers, fire-fighters, police officers, and offers of partnership.

Illegal contracts

Where the employment contract or performance of it is illegal, this can sometimes give the employer a defence to an Equality Act claim.

However, illegality is more likely to defeat an unfair dismissal claim, for example, than an Equality Act claim.

Hounga v Allen, (link to bailii.org), Supreme Court, July 2014
The employer helped the claimant to enter the UK illegally when she was 14, with the claimant's knowing participation. The claimant worked as an au pair, and was subject to serious physical abuse. She was told that if she left the home she would be imprisoned because her presence in the UK was illegal. She was then forcibly evicted. She brought various claims, including under the Race Relations Act (now the Equality Act). Her contract of employment was illegal under immigration legislation. Neverthess, the Supreme Court held she could claim discrimination. There was no 'inextricable link' between the claimant's illegal conduct and the actions complained of, if that was the relevant test. But the majority of the Supreme Court considered the illegality defence in the context of concern to preserve the integrity of the legal system. The majority found that the considerations of public policy in favour of the defence scarcely existed in the present case, and also that to the extent they did exist, they should give way to the public policy of combatting trafficking and protecting its victims.

Other points

Volunteers

See separate page: Volunteers.

Charities etc

There are also certain exceptions relating to disabled charities and to supported employment (s.193 EqA).

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Last updated 5th December, 2017