Who is protected by the Equality Act 2010?

The Equality Act 2010 (EA 10) prohibits discrimination against:

• all employees, job applicants and former employees;

• contract workers, agency workers, sub-contract workers, temps, casual workers, apprentices, people on vocational training or work experience;

• police officers;

• partners;

• barristers;

• office holders.

“Employment” is defined as “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work” (section 83(2)(a) of the EA 10). Crucially, to be protected, a worker must be contracted to do work personally.

Agency workers can claim discrimination against the end user or hirer under the EA 10. Where the worker is employed by the agency and supplied to work for the end user, they can claim discrimination against either the end user or the hirer (section 41 EA 10: Contract workers).

In London Borough of Camden v (1) Pegg (2) Randstad Care Limited (3) Hays Specialist Recruitment Limited [2012] UKEAT/0590/11/LA, the EAT confirmed that a temporary agency worker who is not employed by the agency is engaged under a contract “personally to do work” as soon as they have accepted an assignment with the end user. This is the case even if, under the terms of the agreement with the employment agency, the worker can choose whether to accept each assignment. In Pegg, the claimant, a temporary agency worker, brought a successful claim for disability discrimination against the hirer, Camden Council.

Contract workers providing their services through a limited company are unlikely to be protected by the EA 10, because there is no “contract personally to do work” (Halawi v WDFG UK Limited [2013] UKEAT 0166/13/0410). However, the position may well be different if there is evidence that someone has been pressured into working through a limited company, instead of doing so voluntarily.

Employees who are discriminated against not by their own employer or its employees but instead by employees of a third party contractor or by agency workers, may have no claim under the EA 10. This is the case even if the third party workers work alongside the victim of discrimination and are under the direction and control of the victim’s employer. This unexpected conclusion was reached in Kemeh v Ministry of Defence [2014] EWCA Civ 91 and is discussed on page 178.