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Employees and beyond

The work-related provisions of the Equality Act cover not only employees but also many other categories. This page outlines the rules. However, as regards disability the armed forces are excluded from these provisions.

Employees
How far is self-employment covered?
Extension beyond employees

Former employees
Exclusion of the Armed Forces
Illegal contracts
Other

Employees

The Equality Act employment provisions apply to employees (except the armed forces, or in some cases of illegality, eg often an immigrant working illegally).

It will often be clear that a person is an employee. Sometimes the distinction between employment and self-employment is more difficult (there is broad guidance on employment at direct.gov.uk: Working out your employment status: employees).

However, that distinction between employed versus self-employed is not the main distinction relevant for the Equality Act. This is because some self-employed workers are within the Equality Act. The main issue is likely to whether the individual (even if self-employed) is an 'independent provider', not in a relationship of subordination, so as to be excluded from the Equality Act under the Jivraj case (see next heading).

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'.

There can 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).

The issue can arise whether employment protection applies to contestants on TV shows. See Services to the public: Broadcast content.

If the person is an employee, protection against discrimination and harassment will often extend to events outside work.

How far is self-employment covered?

'Employment' as defined in the Equality Act includes "employment under ... a contact personally to do work" (s.83(2) EqA). One might think this includes any self-employed person who has this obligation to perform personally. However, the Supreme Court held in Jivraj that an independent supplier of services such as an arbitrator does not fall within this provision:

In Jivraj v Hashwani (link to bailii.org), July 2011, the Supreme Court held that an arbitrator did not fall within what is now s.83(2), and so was not protected as an employee.

There must be 'employment' under a contract to personally do work. The Supreme Court applied the test in a European Court decision, Allonby: "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)

Extension beyond employees

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 also 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

It might be thought from the wording of the Equality Act that victimisation post-employment is not covered. However, the Court of Appeal has now held that it is indeed 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 that.

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 (MoD) 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 Annex A of www.officefordisability.gov.uk/docs/wor/uncon/un-memo.pdf from where the quote above is taken.

There is a group of links on the BSA website employment page (www.stammering.org/employment.html) to articles on experiences of people who stammer in the armed forces.

'Employment services' related to the armed forces

Work experience in the armed forces is also excluded from 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 contact or performance of it is illegal, this may 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 10th December, 2012 (part update 6th September 2014)