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Employees, workers and beyond

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Last updated 5th December 2017 (part update 23rd September 2019).

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

  • A ‘worker’ can generally claim under the Equality Act employment provisions, whether or not they are an ’employee’. ‘Workers’ are people who are not genuinely self-employed. They have some employment rights (including Equality Act claims, paid holiday and minimum wage) but not as many as employees. Below Three types of employment status.
  • The main requirement to be a ‘worker’ and claim under the Equality Act is that one is part of someone else’s business, rather than carrying on a business on one’s own account. Below ‘Worker’: must be part of someone else’s business.
  • Another requirement to be a ‘worker’ is that the contract must oblige one to perform the services personally. A right to substitute someone else to do one’s work (unless sufficiently limited) is likely to mean one is not a worker. This may be used by companies to structure their arrangements so as to deny employment rights. See below Right of substitution.
  • Recent cases on the gig economy such as Uber and Deliveroo have been in the news. Outcomes will very much depend on the arrangements of the particular company. See below Gig economy.
  • There may technically be differences between the ‘worker’ definition and who is covered by the Equality Act. However recent cases tend to merge the two. Below ‘Worker’: statutory definitions.

Special cases

  • As well as employees and workers, special provisions extend the Equality Act to contract workers, apprentices, police officers, certain office or post holders, partners and prospective partners, work experience, barristers and their pupils, and local councillors. Below Extension beyond employees/workers.
  • Former employees (separate page) are protected by the Equality Act after the end of their employment, where there is sufficient connection with the employment.
  • The Armed forces (separate page) are excluded from the Equality Act employment provisions on disability. However there is a Defence Stammering Network offering support.
  • There is a separate page on Volunteers.
  • Where the employment contact or performance of it is illegal, this may sometimes give the employer a defence to an Equality Act claim. See Exclusions…>Illegal contracts.

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), in 2014. 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 page has not yet been updated for the appeal to the Supreme Court in this case, which also upheld the tribunal decision www.bailii.org/uk/cases/UKSC/2018/29.html . 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)

Allonby

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. See above for facts of the case.
Note: this page has not yet been updated for the appeal to the Supreme Court in this case, www.bailii.org/uk/cases/UKSC/2018/29.html .

Yodel case: European Court reference

In September 2019 the Watford Employment Tribunal agreed to ask the EU Court of Justice whether the fact that an individual has the right to engage a substitute really means they are not a ‘worker’. The claimant is a Yodel parcel courier. The case concerns the Working Time Reguations rather than the Equality Act, but the tests are generally considered to be the same. Link: Tribunal seeks ‘worker’ status clarification from EU (personneltoday.com), 18th Sept 2019.

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. Update: Uber has since lost its appeal to the Court of Appeal www.bailii.org/ew/cases/EWCA/Civ/2018/2748.html, but has been given permission to appeal to the Supreme Court.

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, subject to the EU court reference (Yodel case: European Court reference above), 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 W 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 government’s Good Work Plan issued in December 2018, following the Matthew Taylor review, proposes numerous changes to employment law. These include reforming the rules on which workers have different kinds of employment rights, eg under the Equality Act. This is particularly important given the growth of the gig economy and zero-hours contacts. More: Employment status proposals.

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:

  • contract workers (s.41 EqA and Chapter 11 of the Employment Code) – eg staff employed and supplied by an agency, and probably people employed by a service company and supplied to another group company – more on contract workers;
  • apprentices, where the person is employed under a contract of apprenticeship (s.83(2) EqA);
  • police officers, including police cadets, special constables, and those in private constabularies such as the British Transport Police (s.42 and 43 EqA, Employment Code from para 11.15),
  • certain office or post holders (s.49 to 52 EqA, Employment Code from para 11.31)
  • partners and prospective partners (s.44 to 46 EqA, and Employment Code from para 11.18)
  • work experience – see Work experience.
  • barristers and their pupils in England and Wales (s.47 EqA)
  • in Scotland advocates’ pupils and, to an extent, advocates (s.48 EqA)
  • local councillors. The duty is subject to limitations, eg failure to be appointed is not covered. (s.58 EqA, Employment Code from para 11.56)

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 (link to summary on 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.

Volunteers

See separate page: Volunteers.


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