Hawkins v Darken (t/a Sawbridgeworth Motorcyles)

The extended definition of employment under the Disability Discrimination Act 1995 covers a binding contract personally to do work, even where the worker is self-employed and there are no continuing obligations characteristic of a contract of service. The dominant purpose must be the worker’s personal execution of the essential work, with that individual as principal and major contributor. A contractual right to delegate core tasks is inconsistent with that status, even if delegation is never used. Classification depends on the contractual obligations binding the parties, not simply on actual performance.

Mr Hawkins, a former employee of Mr Darken, brought disability discrimination claims under the Disability Discrimination Act 1995. The Employment Tribunal held that it had no jurisdiction because Mr Darken had 14 employees and fell within the small-business exemption in section 7(1). The Employment Appeal Tribunal allowed Mr Hawkins’s appeal, holding that Mr Cowell, a motorcycle delivery driver supplying services to Mr Darken, was an employee under the extended definition in section 68(1), and remitted the claims to the same tribunal.

Mr Darken appealed. The central issue was whether Mr Cowell worked under a contract personally to do work, notwithstanding the finding that he could send an employee to perform the deliveries.

Decision

The Court of Appeal unanimously allowed Mr Darken’s appeal. Lord Justice Peter Gibson gave the judgment, with Lord Justices Mance and Carnwath agreeing. The order of the Employment Appeal Tribunal was set aside and the Employment Tribunal’s decision was restored.

1. Section 68(1) of the Disability Discrimination Act 1995 creates an extended route to employment through a contract personally to do work. Such a contract must be binding and supported by consideration. Mutual promises to perform work and pay for it are sufficient; further continuing obligations of the kind found in a contract of service are unnecessary.
2. The dominant purpose of the contract must nevertheless be the worker’s personal execution of the essential part of the work. The authorities, including Ready Mixed Concrete v Minister of Pensions and National Insurance [1968] 2 QB 497, Mirror Group Newspapers Ltd v Gunning [1986] ICR 145 and Kelly v Northern Ireland Housing Executive [1999] AC 428, show that self-employed or professional status does not prevent this relationship, but the worker must remain the principal and major contributor.
3. The contractual obligations must be identified rather than inferred solely from what occurred in practice. Following Express & Echo Publications Ltd v Tanton [1999] ICR 693, an unexercised right to delegate remains relevant. Each of Mr Cowell’s ad hoc contracts had to be considered separately. The finding that he could send an employee to perform the core collection and delivery work was inconsistent with a contract personally to do work. His usual personal performance did not alter that conclusion.
4. The court recorded, obiter, considerable doubts about the separate reasoning that an employee working on any day during a notice period automatically counted for the section 7 threshold in relation to dismissal. That issue was not necessary to the appeal and was not decided.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 1755, Mr Darken’s appeal was allowed. The EAT order was set aside and the ET decision restored.
• Employment Appeal Tribunal — Allowed Mr Hawkins’s appeal from the ET, held that Mr Cowell was an employee under section 68(1) of the Disability Discrimination Act 1995, and remitted the case to the same ET.
• Employment Tribunal — Held that Mr Darken had fewer than 15 employees for section 7(1) purposes and dismissed the disability discrimination claims for want of jurisdiction.