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Who is protected by the Equality Act 2010
[ch 7: pages 229-230]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 (see below);
• 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. For more information, see Chapter 2.
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).
Until recently, it was believed to be clear that someone who opts to work through a personal service company (PSC) is not protected by the “work” provisions of the EA 10, because there is no “contract personally to do work” (see Chapter 2, page 38). Instead, the contract is with the PSC (Halawi v WDFG UK Limited [2014] EWCA Civ.1387). However, a recent EAT ruling offers some limited protection to individuals who work in this way:
Mr Abrams belonged to a limited liability law partnership. As he approached retirement, for tax and other reasons he decided to provide his services using a personal service company (PSC). His fellow partners agreed that the PSC could take his place in the partnership, whereupon he withdrew. When Abrams reached the retirement age for individual LLP members, the LLP partners expected the limited company to withdraw from the partnership. Abrams refused, issuing a claim for age discrimination, naming his PSC as the second claimant. He argued that the PSC suffered direct discrimination (being forced to leave the partnership) because of the protected characteristic of another (Mr Abrams).
Making new law, the EAT ruled that a limited company can claim discrimination under the EA 10 if it suffers a detriment due to the protected characteristic of another person with which it is associated. Just as a limited company can be sued for discrimination, so too can it be protected against discrimination, said the EAT. Only a natural person can have a “protected characteristic” under the EA 10, but this does not mean that a limited company cannot be protected. This is because the EA 10 protects not just the individual with the protected characteristic but also anyone else (including, in this case, the limited company) who suffers detrimental treatment linked to the characteristic.
EAD Solicitors LLP and 7 Others 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 the world at large, independently and at arms-length — are not protected by the “work” provisions of the EA 10. See Chapter 2 for information on the rights of self-employed workers.
Freelance workers are likely to be protected if they are integrated into an organisation, supplying services to the customers of that organisation alongside its workforce as opposed to providing services to their own customers on the open market (i.e. genuine self-employment). However the legal position is muddled and unhelpful. In Secretary of State for Justice v Windle & Arada [2016] EWCA Civ 459, the Court of Appeal refused to disturb a tribunal ruling that freelance court interpreters who worked for Her Majesty’s Courts and Tribunals Service on a “per assignment” basis were not “workers”, and therefore could not bring claims for race discrimination in the employment tribunal.