Who Can Rely on the protection of the Equality Act 2010?
Often a source of controversy in the Employment Tribunals is the application of the Equality Act 2010 or more specifically to whom it applies.
In the recently heard case of Halawi v WDFG Ltd t/a World Duty Free and Caroline South Associates the Claimant was an individual providing services to an end user (World Duty Free) through a limited company.
The Employment Tribunal was asked to consider whether she was an employee or a worker under the Equality Act 2010. The Tribunal found against the Claimant and she appealed to the Employment Appeals Tribunal (EAT).
The EAT considered that in order for the Equality Act 2010 to apply a contract has to be present which requires a person to carry out work personally for a company. Upon considering the facts the EAT found that there was no such contract between the Claimant and either of the Respondents. The Claimant also had an unrestricted right of substitution and had exercised her right to send somebody else to carry out the work on occasion.
Another telling factor was that the Respondents had a lack of control over the Claimant and there was no direct evidence that she was economically dependant on them. It was clear to the EAT that an employment relationship of subordination had not been established and the Claimant could only be said to have been self-employed. Therefore she could not be protected by the Equality Act 2010.
The EAT acknowledged that it was not comfortable with the fact that the Claimant in this case as well as other self-employed people in similar circumstances could be discriminated against but they would have no right to complain to the Employment Tribunal. However despite this the legal tests for employees and workers under the Equality Act 2010 still have to be satisfied.
There are various tests that are applied by the Employment Tribunal in order to determine whether a person is an employee or a worker as opposed to self-employed. Unfortunately it will take some amendment to the current equality legislation in order for self-employed people to be protected against discrimination in the workplace. The law chooses to protect employees and workers due to the nature of an employment relationship and the fact that an employee is required to do what their employer asks of them whereas self-employed people have the option to carry out work elsewhere on their own account if they are unhappy.
If you believe that you are being discriminated against at work because of your sex age disability or any other reason and you would like to speak to a specialist in the law on equality and discrimination please feel free to contact the dedicated employment department at Michael Lewin Solicitors and we will be happy to discuss these issues with you.