Fashions
are a feature of so much in life, and employment law is no exception, where for
the moment at least: Status is in vogue. In recent years the appellate courts
have considered a range of relationships, and been asked to answer the
question: what is the legal characterisation of the claimant’s relationship
with the respondent? The question is put more specifically in each case; was the
claimant an employee, a worker, an office holder, or truly self-employed as an
independent provider of services? But this is merely to particularise the
general question: what is the claimant’s status?
The
leading cases include: Clyde & Co
LLP v Bates van Winkelhof [2014] UKSC 32; President of the Methodist Conference v Preston [2013] UKSC 29; Ministry of Justice v O’Brien [2013] UKSC
6; and Hashwani v Jivraj [2011] UKSC
40, all in the Supreme Court; Quashie v
Stringfellow Restaurants Ltd [2013] IRLR 99; and Hospital Medical Group v Westwood [2012] IRLR 834 in the Court of
Appeal.
It is
easy to see why status is so important. Employment law differentiates between
categories of relationship, conferring different rights and obligations upon
the parties within each. A worker may bring a complaint of detrimental
treatment (short of dismissal) on the ground of having made a protected
disclosure under s.47B of the Employment Rights Act 1996 “ERA”, however, only
an employee may bring a complaint of dismissal by reason of having made a
protected disclosure under s.103A ERA; only employees with the necessary
qualifying period can bring claims of unfair dismissal; employees are granted
protection from unlawful discrimination under the Equality Act 2010 “EA” but an
expansive definition of employee applies, and there is no temporal requirement.
It is in this context that the Court of Appeal’s decision in Halawi should be read.
The Factual Background
Mrs.
Halawi was seeking to bring a claim of religious discrimination, and to do so
had to demonstrate, as a preliminary matter, that she was an employee of the respondent,
WDF. The definition of employee in this context is the expanded one found in
s.83(2) EA which includes “…employment
under…a contract personally to do work…”
WDF operates
retail outlets at airports, including beyond the departure gates; an area
described, as ‘airside’ in the industry jargon. Mrs. Halawi was a beauty
consultant who provided services through an employee-controlled company to a
service company, which itself provided management services to cosmetic companies
occupying space by permission of WDF. In order to work airside, a special pass
issued by the British Airports Authority upon sponsorship by WDF, was required.
In 2011
WDF withdrew Mrs. Halawi’s pass meaning that she was unable to continue her
work. This, it was claimed, constituted an act of unlawful discrimination
perpetrated by WDF, and so to pursue the claim Mrs. Halawi had to show that
she was an employee of WDF.
The Findings of the Court of Appeal
EU law, and
in particular the Framework Directive 2000/78, provides the provenance of domestic
discrimination legislation. The applicable test was whether in substance the
relationship between the parties was one that met the criteria laid down by EU
law. Whilst the appeal was brought on a range of grounds it is helpful to focus
on two criteria highlighted by Lady Justice Arden, who gave the only reasoned
judgment: First, a requirement that the putative employee should agree
personally to perform services, and second, a requirement that the putative
employee should be subordinate to the employer, that is, generally be bound to
act on the employer’s instructions.
The requirement to personally perform work
The
Court of Appeal made short work of the argument that there was no requirement
for personal work. The EA, Hashwani and the EU jurisprudence upon which it relies, makes clear that there must be
some obligation to perform work personally. The Employment Tribunal found as
fact that Mrs. Halawi had a power of substitution; she did not have to give
reasons for any substitution nor seek approval for it. Although that power of
substitution was rarely used, it was neither a sham nor something that could be
disregarded.
The issue of subordination
The
Employment Tribunal had found that Mrs. Halawi was not subject to WDF’s
control in the way she carried out her work. Such a lack of subordination was
also consistent with a lack of integration into WDF’s business. Mrs. Halawi
argued that hers was a case where the need for subordination was qualified, relying
on the Supreme Court’s Judgment in Bates.
In Bates, it will be remembered Lady Hale
held that the absence of subordination might not in some cases mean that there
is no relationship of employment; it was not a ‘…freestanding and universal…’ element. Immediately prior to making
that finding Lady Hale had cited the case of Westwood, the doctor who provided hair restoration procedures
amongst other medical services elsewhere, holding 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.”
In Mrs.
Halawi’s case the Court of Appeal relied on the fact that there was no
documentation to support the existence of employment, and independence was not
a necessary feature of Mrs. Halawi’s work. Consequently, the requirement for
subordination did not need to be qualified, and the requirement must be
satisfied for employment to be found.
Consequently,
on both of these grounds the appeal failed. Mrs. Halawi was not an employee
within the extended meaning of the EA and could not pursue her claim for
discrimination against WDF.
The
Judgment is in many ways a statement of orthodoxy. It affirms the law in this
area, citing and relying upon previous cases, though admittedly the Supreme
Court, by which the Court of Appeal was bound, had decided a number of those.
However it is interesting that Lady Justice Arden chose to cite certain
comments made by Mr. Justice Langstaff, President of the Employment Appeal
Tribunal, who had heard the first appeal. Mr. Justice Langstaff had reached his
conclusion, subsequently endorsed by the Court of Appeal, despite having “…an uneasy feeling…that the arrangements here
were such that the Claimant could have been the victim of discrimination and
yet have no right to complain to a tribunal about it.” It is necessary for
a court or tribunal to approach the application of discrimination legislation purposively
and not restrictively, reflecting its European provenance. But even when
approached in that way the necessary prerequisites for a claim must be met, and
where they are not, as here, the claim cannot proceed.
