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Who is protected by the Equality Act 2010
[ch 7: pages 202-203]The EA 10 prohibits discrimination against:
• all employees, job applicants and former employees;
• contract workers, freelancers, agency workers, sub-contract workers, temps, casual workers, zero hours contract workers, apprentices, people on vocational training or work experience;
• 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 thought clear that someone who opted to work through a personal service company (PSC) had no protection under the employment provisions of the EA 10, because there was no “contract personally to do work” (see Chapter 2, page 44). Instead, the individual was providing the services via their own limited company (Halawi v WDFG UK Limited [2014] EWCA Civ.1387). However, a new EAT ruling may offer some limited protection to these workers:
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, and he withdrew. When he 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. 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 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 in business in their own right marketing their services to the world at large, independently and at arms-length — are not protected by the employment provisions of the EA 10. See Chapter 2 for information on the rights of self-employed workers.