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Discrimination - meaning of employee

View profile for Chris Dobbs
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Halawi v WDFG UK Limited

The Court of Appeal has unanimously held that UK discrimination law does meet the requirements of EU law in protecting employees in this case.

The Appellant worked through her own company as a beauty consultant in a duty-free shop at Heathrow. The company managing the premises removed her airside pass and she claimed that this amounted to a discriminatory dismissal by her ‘employer’.

On the original employment tribunal’s findings of fact, with no contract between the Appellant and Respondent, the Appellant failed to satisfy two key tests for employment with the Respondent under EU law. She had not agreed personally to perform services for the Respondent, even having a right of substitution with the shop owner, which was exercised. Furthermore, she was not controlled by the Respondent, which had no control over how the Appellant worked beyond its right to restrict her access to the workplace, so there was no subordination, a key element of employment in EU law.

The Court of Appeal echoed the Employment Appeal Tribunal’s concerns over the ramifications of the judgment as leaving the Appellant with no remedy if there had been discrimination, but recognised that it was bound to so find on the facts, and rejected a request for a reference to the European Court of Justice.

In Practice

This case is a timely one, coming along at the same time as the government has confirmed a review of the law relating to employment status. The Court was correct in its finding based on the law as it currently stands, but it does leave sections of the UK workforce open to discrimination. It can reasonably be argued that no-one should suffer discrimination, no matter what their employment status. Employment PartnerKate Fretten says, “We will keep you informed on the progress and outcome of the government’s review on this area.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.