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Who is protected by the Equality Act 2010
[ch 7: pages 219-220]Part V of the EA 10 (“Work”) prohibits discrimination against:
• all employees, job applicants and former employees;
• contract workers, agency workers, sub-contract workers, temps, casual workers, zero hours contract workers, apprentices, people on vocational training, work placements or work experience;
• many freelancers;
• police officers;
• partners;
• barristers;
• office holders; and
• members of a limited liability partnership.
“Employment” is defined in section 83(2)(a), EA 10 as “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”. To be protected, there must be a contract to work personally. Although the statutory language is slightly different, this is the same test that is used to decide whether someone is a “worker” for the purpose of claiming rights to the National Minimum Wage and holiday pay (see Chapter 2, page 34).
A temporary agency worker who suffers discrimination or harassment can claim against the employment agency as well as the hirer where they are assigned to work (London Borough of Camden v (1) Pegg (2) Randstad Care Limited (3) Hays Specialist Recruitment Limited [2012] UKEAT/0590/11/LA).
Someone who supplies their work via an intermediary (for example, a personal service company (PSC)) may struggle to bring a discrimination claim because of the absence of a contract “personally to do work” (Halawi v WDFG UK Limited [2014] EWCA Civ.1387). However, this is a developing area of law and a claim may be possible in some circumstances, as the next example shows:
Mr Abrams was a limited liability partner (LLP) at a firm of solicitors. For tax reasons, he belonged to the LLP through his personal service company (PSC). When the firm asked Abrams to withdraw his PSC from the partnership because he had reached the firm’s retirement age, the EAT allowed him to pursue a tribunal claim for associative age discrimination (see page 223) based on the less favourable treatment of his PSC due to Abrams’ own protected characteristic. Making new law, the EAT noted that discrimination claims can already be brought against limited companies, and that there was nothing in the EA 10 to prevent a limited company bringing a claim for discrimination where it suffers less favourable treatment due to the protected characteristic of someone associated to it.
EAD Solicitors LLP v Abrams [2015] UKEAT/0054/15/DM
The genuinely self-employed — those who are freely in business in their own right marketing their services to their own clients and customers independently and at arms-length — cannot claim under the “work” provisions of the EA 10. See Chapter 2: Self-employment.