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Who is protected by the Equality Act 2010
[ch 6: pages 151-153]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 in section 83(2)(a) of the 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. For more information see Chapter 2, pages 32-35.
A temporary agency worker can claim discrimination against both the agency and the hirer, as long as there is a contract to work personally (London Borough of Camden v (1) Pegg (2) Randstad Care Limited (3) Hays Specialist Recruitment Limited [2012] UKEAT/0590/11/LA).
Someone who opts to work via a personal service company will not be protected because there is no “contract personally to do work” (Halawi v WDFG UK Limited [2014] EWCA Civ.1387).
Outsourcing significantly weakens the protection offered by the EA 10, as illustrated by this recent case:
Mr Kemeh, who is black, was directly employed by the Ministry of Defence (MOD) as a cook. He worked alongside an employee of facilities management company Sodexo, Ms Ausher, who racially abused him. Sodexo held the MOD catering contract on the base where he worked.
The Court of Appeal ruled that Kemeh had no claim in discrimination, even though he had been racially abused at work. Kemeh had no remedy against Sodexo because he had no contract to work personally for Sodexo. Kemeh had no remedy against the MOD because Ausher was not the MOD’s employee or agent, authorised to act on its behalf (section 109 EA 10).
Generally, said the Court, employees of a service provider such as Sodexo will not be the “agents” of the client organisation to which they are providing their services. Just because the employee of a service provider is fully integrated into a client organisation’s workforce does not make them the client’s agent. The Court of Appeal suggested that legislation is needed to plug this gap in protection.
Kemeh v Ministry of Defence [2014] EWCA Civ 91
The Kemeh case also underlines why it was a mistake to repeal straightforward laws under the EA 10 banning third party harassment (see page 172).
The genuinely self-employed — those who are in business in their own right marketing their services independently and at arms-length — are not protected by the employment provisions of the EA 10. However any contract worker or freelance who contracts personally to do work for a client (as opposed to being engaged in an independent arms-length “business-to-business” transaction) will be protected (section 83(2)(a) EA 10). What matters is that these workers are providing personal service and are “subordinate” to the client, acting under its direction or control. Contract workers and freelancers do not lose protection under the EA 10 just because they are free to market their services to others, as this case shows:
Court interpreters were protected from race discrimination under the EA 10 even though they did not have contracts of employment. While performing each assignment, they had a contract to work personally. They occupied a subordinate position when carrying out tasks for the Ministry of Justice and were fully integrated into the organisation. They were protected even though they were professionally qualified and free to offer their services to other businesses.
Windle v Secretary of State for Justice [2014] UKEAT/0339/13/RN