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Discrimination - meaning of 'employee'

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Does UK discrimination law meet the requirements of EU law in protecting employees?

Yes, held the Court of Appeal (unanimously) on the facts in Halawi v WDFG UK Ltd, upholding the decisions of the ET and the EAT.

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. She claimed that this amounted to a discriminatory dismissal by her 'employer'.

On the 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 putative employer, 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 (para. 4).

The Court of Appeal echoed the EAT'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 ECJ.