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.
- 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 Supreme Court’s February 2021 decision in Uber v Aslam, below is ground-breaking in putting the emphasis on the statutory purpose of protecting vulnerable workers. Written contracts (typically controlled by the ’employer’) are not even the starting point for deciding whether an individual is protected. Subordination, dependency and control are key. The decision also gives a wide interpretation to statutory provisions which prohibit contracting-out.
- The Uber decision illustrates it is a myth to think that being self-employed and having flexibility in when and where you work (which many people value) means you can’t be a worker and have employment protections.
- The main requirement to be a “worker” and claim under the Equality Act is that the individual is part of someone else’s business, rather than carrying on an independent business on their own account. However Uber v Aslam sets the context in which this must now be considered. Below ‘Worker’: part of someone else’s business.
- British legislation says that a further requirement to be a “worker” is that the contract must oblige the individual to do the work “personally”. Companies sometimes give the individual a right to substitute someone else to do the work (subject to conditions), to try to deny employment rights, see eg the Deliveroo case. Following Uber, courts may perhaps try to see a right of substitution as consistent with being a worker if the individual is subordinate to and/or dependent on the ’employer’. See below Right of substitution.
- 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.
Three types of employment status
This includes the typical person working set hours, x number of 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 and statutory redundancy pay. They also have the rights of “workers” (below), including under the Equality Act.
The distinction between “employee” and “worker” is not really important for the Equality Act, since “workers” can also claim under the Equality Act.
“Worker” includes broadly, as well as employees, a person who is part of someone else’s business and so subordinate to or dependent on them, rather than running their own independent business: below Workers: definition. For example many people working on a zero-hours or casual basis are likely to be workers (if not employees), though it depends on the facts. Who is a “worker” is discussed in much more detail on the rest of this page.
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. Other examples of workers’ rights include 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 independent business who are not “workers”, and so normally have no employment rights. (There are always exceptions. For example, whistleblowing rights extend to some people who are not “workers”, and on the Equality Act see below Extension beyond employees/workers.)
Definition of “worker”
Whether someone can claim under the employment provisions of the Equality Act usually depends on whether they are a “worker” or applying to be a “worker” (category 2) rather than genuinely self-employed (category 3), so that is what I focus on here.
The Equality Act actually gives rights to “employees”, or applicants for “employment”. However the Equality Act has an extended definition of “employee” which is read as meaning substantially the same as “worker”. I discuss the detail of that below: Technical note: statutory definition of “worker”. As a shorthand, I talk on this page of “workers” being entitled to claim under the Equality Act.
In summary, treating the Equality Act “employee” definition as the same as the “worker” definition, the key elements for someone to fall within the definition are:
- That the individual is not carrying on an independent business of which the ’employer’ is a client or customer. See below “Worker”: part of someone else’s business.
- A contract whereby the individual undertakes to perform work or services for the ’employer’: below Workers: Contract to perform services for the ’employer’. This was the issue in Uber v Aslam (below), where Uber argued unsuccessfully that drivers’ contracts were with passengers and that Uber acted only as agent.
- An undertaking to do the work or perform the services personally. This raises the issue of how far an individual is prevented from being a “worker” if they have a right to substitute someone else to do the work. See below Right of substitution.
“Worker”: Uber v Aslam – vulnerability rather than documentation
That definition of “worker” must however be read in the light of Uber v Aslam, 2021, a ground-breaking Supreme Court decision on employment protection. The court held that when deciding who is a worker, the courts must have regard to the purpose of the statutory provisions – protecting vulnerable workers from various forms of unfair treatment. The courts must interpret the language of the statute so far as possible in the way which best gives effect to that purpose. Vulnerability is key, in particular whether the worker is in a subordinate and/or dependent position vis-à-vis the ’employer’ (or in a hierarchical relationship as the EU Court puts it). A touchstone of subordination and dependence is the degree of control exercised by the putative employer over the work or services. The greater the control, the stronger the case for classifying the individual as a “worker”.
An important result is that courts should not start from the written contract in deciding whether someone is a worker. The corollary of being subordinate and/or dependent is that the employer has control over the contractual terms. Employment protection would be seriously undermined if the employer could, even prima facie, determine whether someone is a worker by the way the relationship is characterised in the written contract. The court also made important comments on contracting-out provisions (below).
To look at how the Supreme Court applied this in the Uber case:
Uber v Aslam, Supreme Court, 2021
The Supreme Court held that Uber drivers (in London) were “workers” rather than genuinely self-employed. They were therefore entitled to the national minimum wage, paid holiday, and whistleblowing protection. Uber had argued that the documents showed it was an agent providing technology services to individual drivers, who contracted with each passenger and did not provide services to Uber. It had argued that drivers therefore did not meet point 2 of the “worker” definition above.
The Supreme Court upheld the decision of the lower courts that the drivers were “workers” providing services to Uber, which itself provided transportation services through the drivers. The court rejected Uber’s argument that a tribunal can only depart from a written agreement if the reality is inconsistent with the agreement; it held that a tribunal should not even start from the written agreement (see the discussion above).
The Supreme Court emphasised five aspects justifying the conclusion that the claimants worked for and under contracts with Uber:
– of major importance, Uber dictated the fare, and thus how much drivers were paid for the work they did;
– the contract terms on which drivers performed their services were imposed by Uber and drivers had no say in them;
– once a driver had logged onto the Uber app, the driver’s choice about whether to accept requests for rides was constrained by Uber, for example through imposition of a penalty if too many trip requests were declined or cancelled;
– Uber exercised significant control over the way in which drivers delivered their services, for example a system of ratings seen by Uber but not by customers;
– Uber restricted communications between passenger and driver to the minimum necessary to perform the particular trip and took active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.
Taking these factors together, the Supreme Court said the transportation service was very tightly defined and controlled by Uber. Furthermore, it was designed to provide a standardised service to passengers in which drivers were perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtained the benefit of customer loyalty and goodwill. The same factors (eg inability to offer a distinctive service or set their own prices) meant that drivers had little or no ability to improve their economic position through professional or entrepreneurial skill. The court contrasted a digital hotel booking platform where hotels are in competition with each other to attract business through the price and quality of the service they supply.
This Uber decision was not an Equality Act case, but should apply equally to deciding who is entitled to bring an Equality Act claim. The Supreme Court in Uber expressly pointed out (at paragraph 112) that it had previously held in Pimlico Plumbers (below) that the definition of a “worker” has substantially the same effect as the definition of “employee” in the Equality Act. Incidentally, it has been reported that a sex discrimination claim has been brought against Uber under the Equality Act, on the grounds that it does not do enough to enable female drivers to turn down unsafe destinations: Uber sexism case: London-based female driver issues sex discrimination proceedings against taxi company (independent.co.uk), 2017.
Uber v Aslam: Statutory restrictions on contracting out
The Supreme Court in Uber said that its approach of not taking the written contract as the starting point (above) is further justified by statutory prohibitions against contracting-out. For example, an employer is not allowed to contract out of its obligation to pay the minimum wage. Though not specifically considered in Uber (as it didn’t include an Equality Act claim), the Equality Act also has such a provision, s.144 EqA. The Supreme Court (at para 80) said that these contracting out provisions:
“…apply to any provision in an agreement which can be seen, on an objective consideration of the facts, to have as its object excluding or limiting the operation of the legislation. It is just as inimical to the aims of the legislation to allow its protection to be limited or excluded indirectly by the terms of a contract as it is to allow that to be done in direct terms.”
So the contractual provision isn’t void only if it says directly that the legislative protection doesn’t apply. It can be void if its object is to exclude the legislation indirectly – for example, as in the Uber case, by saying there is a direct relationship between driver and passenger to which Uber is not a party, or saying Uber does not direct or control drivers. See further Uber v Aslam>Restrictions on contracting out.
A way ’employers’ use to try and exclude someone being a worker is to insert a right for them to substitute someone else – perhaps suitably qualified – to do the work, so that there is no contract to do work “personally”. An interesting question is whether following Uber v Aslam such a right to substitute, even if genuine, may be void if its object is to avoid the person being a worker: below Right of substitution: Contracting out.
Uber v Aslam: ‘Employers’ seeking to structure arrangments to avoid “worker” status
It seems that organisations will need to make commercial decisions as to whether they are willing to give up significant control of services, and allow individuals not to be subordinate/dependent. Uber v Aslam seems to be saying you can’t ‘have your cake and eat it’. You can’t keep the significant control and still say the individuals are not “workers”.
As discussed under Right of substitution below, I suggest that opportunities to escape that result by giving a right to substitute someone else to do the work are limited, unless that right is part of giving the individual genuine independence.
“Worker”: part of someone else’s business
To be a “worker”, the main requirement is that the individual is not providing the services as part of their own independent profession or business undertaking of which the ’employer’ is a client or customer. A worker typically provides their services as part of someone else’s business. As discussed in the Uber case above, it is important how far the individual is subordinate to and/or dependent on the organisation to which they are providing services, and how far the organisation exercises control over the work or services, including the remuneration.
The Supreme Court set out the basic distinction in an Equality Act 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 (bailii.org), 2014, Supreme Court at para 25.
In a previous case the Supreme Court described the test as:
“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”.
Hashwani v Jivraj (below), 2011
In applying this test in practice, first and foremost Uber v Aslam (above) is likely to be influential, even though the court was not applying this “business” part of the definition of “worker”. Clearly tribunals should follow the approach set out by the Supreme Court in Uber: above Uber v Aslam: vulnerability rather than documentation. Also the “five features” of the case emphasised by the Supreme Court there, which together indicated that Uber drivers were subordinate to and dependent on Uber, may well be influential.
Pimlico Plumbers, 2018, is another recent example where the Supreme Court held that individuals were not really in business on their own account, and so were “workers” who could claim under the Equality Act:
Pimlico Plumbers v Smith (bailii.org), Supreme Court 2018
A plumber working with 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 Supreme Court upheld the tribunal decision that he was a “worker” entitled to claim under the Equality Act and under those regulations. Was Pimlico a client or customer of a business carried on by the individual plumber? The Supreme Court upheld the tribunal decision that it was not. This was despite factors such as the plumber being able to reject particular offers of work from Pimlico, to take outside work, and the lack of supervision. The Supreme Court said there were features of the contract which strongly militated against Pimlico being a client or customer. Pimlico’s tight control over the plumber was reflected in him having to:
– wear the branded Pimlico uniform;
– drive its branded van, to which Pimlico applied a tracker;
– carry its identity card; and
– closely follow the administrative instructions of its control room.
The court also said the severe terms as to when and how much it was obliged to pay him betrayed a grip on his economy inconsistent with him being a truly independent contractor. The contract made references to “wages”, “gross misconduct” and “dismissal” and there was a suite of covenants restrictive of his working activities after termination.
The Supreme Court also rejected Pimlico Plumbers’ argument that the claimant could not be a worker because his rights to substitute someone else to do the work were too substantial. See below Right of substitution where there is more on this case.
A case where the EU Court gave a strong steer that the claimant was not a “worker” on the facts of the case is B v Yodel Delivery Services, below, 2020.
The fact that an individual is entirely free to work or not, and owes no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is a worker, or indeed an employee, at the times when he or she is working (eg casual or seasonal workers such as waiters, fruit pickers, or casual building labourers). However where an individual only works intermittently or on a casual basis for another person, that may, depending on the facts, tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with worker status. The authority for those two sentences is the Supreme Court in Uber v Aslam at para 91; the court cited as authority for the second sentence a case on court interpreters working intermittently:
Secretary of State for Justice v Windle (bailii.org), Court of Appeal, 2016
The Court of Appeal upheld an employment 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 that the tribunal was entitled to take into account the fact that there was no umbrella contract, although the lack was not conclusive. The Court of Appeal 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 (bailii.org), 2014, the Supreme Court held that a limited partner in a firm of solicitors was a “worker”. The Supreme Court in Uber v Aslam, 2021, pointed to Lady Hale’s comment in the Clyde & Co case that subordination “is not a freestanding and universal characteristic of being a worker” – in other words a worker need not always be subordinate. Lady Hale had said just before that “… one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one’s bow, and still be so closely integrated into the other party’s operation as to fall within the definition [of “worker”]. The Supreme Court in Uber explained that the solicitor in Clyde & Co was a “worker” essentially because she could not market her services as a solicitor to anyone other than the LLP and was an integral part of its business. The Supreme Court continued:
“While not necessarily connoting subordination, integration into the business of the person to whom personal services are provided and the inability to market those services to anyone else give rise to dependency on a particular relationship which may also render an individual vulnerable to exploitation.”
This points up that an individual – particularly one in a senior position or a professional – may be a worker based on dependency without subordination. (However a partner should fall within the Equality Act anyway under express provisions which extend the Act to partners: below Extension beyond employees/workers.)
“Worker”: Contract to perform services for the ’employer’
One way ’employers’ may try to avoid individuals having employment rights as a “worker” is to structure arrangements so that individuals contract to provide services to the customer, with the ’employer’ acting only as their agent. It can then argue that the individuals have no contract to perform services for the ’employer’. It is this kind of arrangement which was considered by the Supreme Court in Uber v Aslam, above. The court effectively disregarded the contractual provisions according to which Uber only acted as agent, looked at the broader arrangements, and held that its drivers were “workers”. Each case will depend on the facts.
“Worker”: Right of substitution
To fall within the Equality Act – or to be a “worker” more generally – British legislation says there must be a contract to do work “personally”. (For the technical wording, see below Technical note: statutory definition of “worker”). For example, a plumber who has an unfettered contractual right to send anyone he likes to do the work instead is not a “worker” (Pimlico Plumbers, below).
This gives companies another potential way to avoid their staff being “workers”, escaping possible liability under the Equality Act. It may be the reason why Deliveroo (below) gave its riders wide rights to allow someone else to do the work for them. The riders were held not to be “workers” because their contractual right to appoint a substitute was genuine and was sometimes used, albeit rarely. However that case is not a binding precedent.
Especially after Uber v Aslam (above), there are numerous uncertainties on how far a right to appoint a substitute means an individual is not a worker and is unable to claim under the Equality Act. This is discussed below. The courts may perhaps try to see a right of substitution as consistent with being a worker if overall the individual is still subordinate to and/or dependent on the ’employer’. We may get some more clarity (subject to further appeals) from the Employment Appeal Tribunal decision in Turner v DPD (below) which is expected soon.
Right of substitution: Uncertainties on how far such a right stops someone being a “worker”
Right of substitution: UK case law before Uber v Aslam
UK decisions before Uber v Aslam view a genuine right to substitute someone else to do the work as inconsistent with being a “worker” unless the right is sufficiently limited, because it means there is not an obligation to perform work “personally” as required by the legislation. An exception is where the written right to substitute does not in truth represent what has been agreed: Autoclenz.
As to how far a right to substitute is consistent with personal performance and being a worker, in Pimlico Plumbers (below) where only another Pimlico Plumbers operative could be a substitute:
- The Supreme Court said that in some cases, including the Pimlico Plumbers case, it is helpful to look at whether the dominant feature of the contract remains personal performance. In this case the contract terms were clearly directed to performance by the claimant personally. Substitution would not be usual. Being limited to another Pimlico Plumbers operative was also significant; it was the opposite of a situation where Pimlico was uninterested in the identity of the substitute provided the work got done. The right to substitute in this case was consistent with being a worker.
- The Court of Appeal (which reached the same result) said that if the claimant has an unfettered contractual right to substitute someone else to do the work, he is not a “worker”. If the contractual right to substitute is subject to conditions, then it depends on the facts. For example, said the Court of Appeal, a right to substitute only if the claimant is unable to carry out the work, or only if someone other than the claimant consents (if they have absolute discretion to withhold consent) is normally consistent with the claimant having an obligation to perform personally, so that (if part of someone else’s business) he can claim as a worker. However a right to substitute limited only by the need to show that the substitute is as qualified as the claimant to do the work is not normally consistent with an obligation to perform work personally.
How far may this be affected by later developments such as the Supreme Court decision in Uber v Aslam?
Right of substitution: purpose of legislation
The Supreme Court in Uber v Aslam now emphasises that the purpose of the legislation is important in deciding who is a “worker, so far as the statutory wording allows. The purpose is (broadly) to protect vulnerable workers from unfair treatment.
So vulnerability is important, with particular touchstones (said the Supreme Court) being how far the individual is subordinate and/or dependent, and control by the ’employer’. But also the statutory wording says there must be a contract “personally” to do work. However it is evident from the previous sub-heading that there is some ambiguity in that statutory wording. Where a worker is subordinate and/or dependent as discussed in Uber, we may find tribunals tending to find there is sufficient obligation to do work “personally”, so as to allow the individual to be protected as a “worker” in line with the purpose of the legislation.
In deciding whether there is a contract to do work personally, tribunals may particularly look at whether the “dominant purpose” is personal service, as suggested by the Supreme Court in Pimlico Plumbers. Compared with the more technical approach taken by the Court of Appeal, looking at the “dominant purpose” may correlate better with deciding whether the individual is really independent, in accordance with the legislative purpose. On Pimlico Plumbers, see above Right of substitution: UK case law before Uber v Aslam.
Of course a wide right to substitute someone else to do the work may be a strong indicator that the individual is independent. But is that really the case where, as in Deliveroo below, the ’employer’ inserts such a right but it is rarely exercised by anyone providing services for them? It might be argued that in Deliveroo (decided prior to the Supreme Court decision in Pimlico Plumbers) the dominant feature was personal service.
Right of substitution: Contracting out
Firstly, Uber v Aslam somewhat downgraded the importance of the written contractual terms in deciding whether someone is “worker”: above Uber v Aslam: vulnerability rather than documentation. However the court did say written documentation could be relevant, and that presumably includes a provision giving the individual the right to appoint a substitute.
However what about the Supreme Court’s discussion of contracting out? – see above Uber v Aslam>Restrictions on contracting out. The court said that if a contractual provision, presumably including a right to substitute written into a contract, “can be seen, on an objective consideration of the facts, to have as its object excluding or limiting the operation of” eg the Equality Act, then it is void under s.144 EqA. (The court was not specifically considering the Equality Act but its comments seem to apply to the Act even so.) The Supreme Court stresses that it is just as inimical to the aims of the legislation to allow its protection to be limited or excluded indirectly by the terms of a contract as it is to allow that to be done in direct terms.
Even without s.144 EqA, a contractual provision is clearly void in a case like Autoclenz where the written right to appoint a substitute does not reflect the true agreement of the parties. But what about a case like Deliveroo, below, 2017? There the Central Arbitration Committee held that the right to substitute was genuine and occasionally (but rarely) used, even though the right did not make commercial sense. The Committee said it did not matter if Delieveroo inserted the right to prevent the riders from being classified as workers. But that was before Uber v Aslam. Could s.144 EqA invalidate the right to substitute if its object was to exclude the Equality Act? This will require clarification in future decisions.
Right of substitution: just one relevant factor?
The EU Court of Justice (ECJ) in Yodel (below) appears to have seen the right of substitution as just one relevant factor in deciding whether the claimant was a worker. It said the tribunal should focus on whether the claimant was really independent and whether there was a relationship of subordination. This seems different from the decisions in Pimlico Plumbers and Deliveroo below which both went on the assumption (based on British statutory wording) that a person is not a worker unless there is an obligation of personal performance, with any right to substitute being sufficiently limited.
The ECJ’s reasoned order in Yodel should normally be followed by British courts even after Brexit (unless it’s relevant that it’s a reasoned order rather than a normal decision). However it might be argued the reasoned order is not clear enough on this point, and the reasoned order did not actually say the British requirement for personal service is inconsistent with EU law. British courts may be more receptive to arguments based on Uber v Aslam as discussed above, though Yodel might perhaps contribute to an argument that any right of substitution should be seen in the context of whether the claimant is really independent rather than subordinate to the ’employer’.
(If the courts did decide that the current British approach is inconsistent with EU law in the light of Yodel, there would be question whether the wording of the Equality Act can be re-interpreted under the Marleasing principle. The High Court (bailii.org) held that a different definition of “worker” cannot be re-interpreted under the European Convention of Human Rights in the Deliveroo case above.).
Cases on the right of substitution
These cases are subject to the discussion above in Uncertainties on how far a right of substitution stops someone being a “worker”.
The case law on rights to substitute someone else to do the work was considered by the Supreme Court and Court of Appeal in:
Pimlico Plumbers v Smith (bailii.org), Supreme Court 2018
The facts are summarised above. The Supreme Court upheld the tribunal decision that the plumber was a “worker” and could claim under the Equality Act.
The plumber had a right to substitute another Pimlico Plumbers operative (no-one else) to do work, but the Supreme Court held that this right was consistent with him being a worker. The Supreme Court said that in deciding whether there is an obligation of personal performance, there are cases (including the present one) where it is helpful to assess the significance of the claimant’s right to substitute by reference to whether the dominant feature of the contract remained personal performance on his part. Here the contract terms were clearly directed to performance by the claimant personally. Substitution would not be usual. The terms of the contract focused on “your” skills, “your” appearance etc.
Also the limitation that any substitute must be a Pimlico Plumbers operative was significant. It was the opposite of a situation where Pimlico was uninterested in the identity of the substitute, provided only that the work gets done.
Court of Appeal
The Court of Appeal (bailii.org) had reached the same conclusion. The Supreme Court did not comment on the Court of Appeal judgment, and is not clear how far the Court of Appeal’s comments will influence future court decisions. However for what it’s worth, the Court of Appeal said that if the contractual right to substitute is subject to conditions, it will depend on the extent to which the right is limited or occasional, and gave some examples:
“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.”
However see the discussion above in Uncertainties on how far a right of substitution stops someone being a “worker”.
The result in Pimlico Plumbers can be contrasted with the Deliveroo case below (not an appeal decision so not a binding precedent). Here riders delivering food from restaurants to customers were held not to be “workers” because the rider had a genuine right to substitute someone else to do the rider’s work, even though it was common ground that the riders were part of Deliveroo’s business and had their contract with Deliveroo:
IWGB Union & Roofoods Limited t/a Deliveroo (gov.uk), Central Arbitration Committee (CAC), 2017
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 the riders to be “workers” (the definition in this context is different but broadly similar to the normal one). Riders in the Camden area were paid a fee per delivery. To become a rider a person 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 decision is subject to appeal, but the outcome is unlikely to affect Equality Act rights. The High Court (bailii.org) in 2018 dismissed an argument that the CAC decision breached Article 11 of the European Convention on Human Rights on the right to form and join trade unions. A decision from the Court of Appeal is awaited, presumably on the same issue: see Deliveroo collective bargaining case reaches Court of Appeal (personneltoday.com), February 2021. However Article 11 would not normally help in an Equality Act case.
The ECJ in Yodel appears to have seen the right of substitution as just one relevant factor in deciding whether the claimant was a worker. However the EU Court gave a strong steer that the claimant was not a ‘worker’ on the facts of the case:
B v Yodel Delivery Network (bailii.org), EU Court of Justice (ECJ), 2020
The Watford Employment Tribunal referred to the ECJ a case on whether a parcel delivery courier for Yodel was a worker. The case concerned the Working Time Regulations rather than the Equality Act, but the “worker” test is substantially the same. The ECJ said the courier had discretion:
– to use subcontractors or substitutes to perform the service, provided the substitute had basic skills and qualifications equivalent to the courier;
– to accept or not to accept the various tasks offered by Yodel, or unilaterally set the maximum number of those tasks;
– to provide his services to any third party, including direct competitors of Yodel; and
– to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of Yodel.
In a “reasoned order”, the ECJ said that such a person is not a worker “provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and his putative employer.” The decision was one for the UK court to make, taking account of all the relevant factors. However the ECJ gave the UK court a ‘strong steer’, saying that his independence did not appear to be fictitious and there did not appear, a priori, to be a relationship of subordination.
For discussion of this case, see above Right of substitution: just one relevant factor?
Comment: CJEU on worker status: B v Yodel Delivery Network Limited (cloisters.com), April 2020. Includes what a “reasoned order” is.
A case which is not (yet) an appeal decision, so not a binding precedent:
Turner v DPD (gov.uk), Employment Tribunal, 2019
The claimants were “Owner/Driver Franchisees” (ODFs) of DPD, driving delivery vans. (There was an alternative option to enter a contract of employment with DPD). The issue was whether they were “workers” and perhaps employees of DPD. The tribunal focused on whether they were prevented from being workers because of their right to substitute another driver to do the work.
The parties disagreed as to how limited this right was. However the tribunal decided that the right to appoint a temporary driver (a “Ninety Day Driver”) was wide, limited essentially by the person being legally entitled to drive in the UK and conversant with DPD’s practices. Permanent “Additional Drivers” were subject to more rigorous approval by DPD but the claimants had not registered any of these. The claimants generally did the driving themself. When they needed cover, in practice they used only drivers which had been approved under the more rigorous process, either other ODFs or “Additional Drivers” of other ODFs.
The tribunal held the claimants were not “workers” because of the genuine and wide contractual right to have another driver, a Ninety Day Driver, do the work.
Note: This case has been appealed to the Employment Appeal Tribunal (EAT). The EAT is due to hear the case on 9th-10th March 2021 (twitter.com).
A case which fell clearly in the ‘genuinely self-employed’ category was Jivraj v Hashwani. This held that an arbitrator did not fall within the Equality Act. 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 (above) which is not in a relationship of subordination with the recipient:
Jivraj v Hashwani (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.
To fall within these employment provisions, under s.83(2) there must be “employment” under a contract to personally do work (below Technical note: statutory definitions of “worker”). 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 that 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)
Another example of someone who was probably genuinely self-employed and so not a “worker” was the delivery driver in Yodel, above.
An early example on stammering:
W v British School of Motoring, Employment Tribunal, 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.
“Worker”: further examples of cases
Two further examples of employment tribunal decisions (not binding precedents) where a claim to be a “worker” was successful. One is CitySprint (personneltoday.com), 2020. Another is:
Gascoigne v Addison Lee (gov.uk), Employment Tribunal, 2017
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 (napthens.co.uk).
“Worker”: Possible changes in law
The government’s Good Work Plan issued in December 2018, following the Matthew Taylor review, proposed numerous changes to employment law. These include reforming the rules on which workers have different kinds of employment rights, eg under the Equality Act (above Three types of employment status). This is particularly important given the growth of the gig economy and zero-hours contacts.
For example, it may become more difficult for employers to avoid liability under the Equality Act by giving workers a right to substitute someone else to do the work.
More: Employment status proposals.
- 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).
See separate page: Volunteers.
Technical note: statutory definitions of “worker”
This is a technical note on Definition of “worker” above.
The Equality Act says its employment provisions apply to an “employee”, but gives this an extended meaning which the courts read to mean substantially the same as a “worker”.
The Equality Act defines “employment” as including “employment under … a contract personally to do work” (s.83(2) EqA). Under s.83(4), “employee” is to be understood in the same way. One might expect this definition to include any self-employed person obliged to perform work personally, but the Supreme Court in Jivraj (above) held that it does not include an independent supplier of services who is not in a relationship of subordination with the person who receives the services.
Jivraj and subsequent cases have tended to align the Equality Act definition of “employee” with the statutory definition of “worker” in other provisions, and on this page I treat them as the same:
- The Supreme Court in Uber v Aslam, 2021, said the definition of “worker” has substantially the same effect as the definition of “employee” in the Equality Act, citing Pimlico Plumbers v Smith (see next bullet point).
- In Pimlico Plumbers v Smith (above), 2017, the Supreme Court considered together the question of whether the claimant was an “employee” within the extended Equality Act definition and a “worker” within other legislation. It said (at paragraphs 13-14) that although the Equality Act does not expressly exclude a contract where the other party is a client or customer, this is “a distinction without a difference” following the Jivraj case.
- As early as 2014, the Supreme Court rather ran the two tests together in Bates van Winkelhof (above).
Since the courts align the definitions, it is also relevant to look at the statutory definition of “worker”. This is defined in various places, but most importantly in s.230(3) Employment Rights Act 1996. S.230(3) says a “worker” includes an “employee” but also ‘limb (b)’ workers, so-called because they fall within s.230(3)(b). Limb (b) workers are anyone who works 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”. The Supreme Court in Uber v Aslam, 2021, saw this ‘limb (b)’ worker definition as having three elements:
- a contract whereby an individual undertakes to perform work or services for the other party;
- an undertaking to do the work or perform the services personally; and
- a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual.