X v (1) R1 and (2) R2

The President of the EAT, Langstaff J, gave judgment in the first appellate decision on the meaning of “employment” for the purposes of the Equality Act 2010 (“the EqA 2010”).

Langstaff J held:
On the meaning of section 83(2) of the EqA 2010 (which provides that “employment” means “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”):

1.  Whether a person is an employee or a worker is essentially a question of fact unless it is one of those cases in which there is a complete written contract, which is not the case here. That is the approach in domestic law and the approach taken by the Court of Justice of the European Union. There is no single test which can ultimately decide the issue.
2. A judge must be careful in this area in particular to reflect the realities of any employment situation. It would be a tragedy if employment was too readily “disguised” in the sense identified by Allonby.
3. Although “worker” has no single meaning for EU law, it does have a meaning which I take to be settled, subject to further developments, in Allonby, Danosa and Coleman v Attridge Law. 
4. What governs me, I accept, is the way in which those cases were considered by the Supreme Court in Hashwani v Jivraj. None of the cases which fed into Hashwani were cases in which the question of whether there was a contract was central, unless one regards Percy as such. And in no case was there a specific consideration of the requirement of personal service.
5. I accept Miss Sen Gupta’s submissions that the statute requires there to be a contract personally to do work. An employment relationship under which one party is paid directly or indirectly will ultimately involve contractual questions if analysed through English eyes. I see here no reason under the Marleasing principle to interpret “contract personally to do work” as if the words “contract” and “personally” were not present.
   
   On whether the Employment Judge was bound to conclude that the employment relationship, albeit non-contractual, was one of subordination:
   
6. The Employment Judge’s task would have been, by the principles in Hashwani and Allonby, to ask whether the person provided services for and under the direction of another person - that denotes an element of control, the flip side in large part to which is “subordination” - and would have to do so by having regard to all the facts and circumstances. The Employment Judge cannot be criticised for not having had regard to all the facts and circumstances. Plainly he did.
7. His conclusion was that there was no relationship under which X was required personally to do her work for either of the Respondents. The absence of control over X feeds into subordination. There was no evidence of economic dependency. 
8. I am bound by the findings of fact to conclude that if the Employment Judge had taken a wrong approach by failing to direct himself specifically to Hashwani, he nevertheless came to the right conclusion on the facts. I accept the Respondents’ submissions that he approached the question in the way in which Hashwani required him to do as a matter of English law.

Langstaff J dismissed X’s appeal and refused her applications for (a) a reference to the Court of Justice; and (b) permission to appeal to the Court of Appeal.

Diya Sen Gupta (instructed by Lewis Silkin LLP) acted for R1.