Hawkins v Darken (t/a Sawbridgeworth Motorcyles)

The central issue was whether a supplier of driving services, Mr Brian Cowell, was an "employee" of Mr Darken for the purposes of the Disability Discrimination Act 1995 so as to bring the employer within the s.7(1) threshold of 15 employees. The Employment Tribunal had found that Cowell was self-employed and did not satisfy the "personal service" or mutuality of obligation tests; the Employment Appeal Tribunal reached the opposite conclusion under the extended definition of "employment" in s.68(1). The Court of Appeal allowed the employer's appeal, holding that the Employment Tribunal's factual finding that Cowell could, in the absence of an express term to the contrary, send someone else to perform the essential collection and delivery work was inimical to there being a contract "personally to do any work" under s.68(1). The court therefore restored the ET decision that the tribunal lacked jurisdiction under s.7(1) because the respondent had fewer than 15 employees.

Background and procedure:

• The claimant, Mr Hawkins, brought a disability discrimination claim arising from his dismissal. The respondent, Mr Darken trading as Sawbridgeworth Motorcycles, relied on the small-employer exemption in s.7(1) of the Disability Discrimination Act 1995 on the basis that he had 14 employees.
• The Employment Tribunal (Bury St Edmunds) held it had no jurisdiction because the respondent had fewer than 15 employees. The Employment Appeal Tribunal allowed Hawkins' appeal, holding that a regular supplier, Mr Cowell, was an employee for the relevant period under s.68(1). The respondent appealed to the Court of Appeal.

Issues for decision:

• Whether, on the facts found by the Employment Tribunal, Mr Cowell was within the statutory definition of "employment" in s.68(1) of the 1995 Act either as employed under a contract of service or under a contract personally to do any work.
• Relatedly, whether findings that the contractor could delegate core tasks defeat a contract "personally to do any work".

Court's reasoning and conclusions:

• The Court of Appeal accepted that the ET had not found a contract of service but focused on whether the extended s.68(1) definition could encompass Cowell. The ET had explicitly found that it was open to Cowell to send an employee to undertake core collection and delivery tasks.
• The court held that such a finding is inconsistent with there being a contract "personally to do any work" because the dominant purpose of each discrete contract would not be the contractor's individual personal performance if delegation were permitted as a matter of inferred term.
• The court therefore concluded that Cowell was an independent contractor and not an "employee" for the purposes of s.68(1); accordingly the ET properly held it had no jurisdiction under s.7(1). The Court of Appeal allowed the respondent's appeal and restored the ET decision.
• The court also expressed reservations (not finally decided on this appeal) about the view that presence of an employee during any day of a notice period necessarily makes the employer a relevant employer for the date of dismissal.

Appeal allowed. The Court of Appeal held that the Employment Tribunal's finding that the contractor could, as a matter of inference, send someone else to perform the core delivery work was inconsistent with a contract "personally to do any work" under s.68(1) of the Disability Discrimination Act 1995. On that basis the contractor was not an "employee" and the ET's decision that it had no jurisdiction under s.7(1) was restored.

Employment Tribunal (Bury St Edmunds) decision sent to parties 17 February 2004 (held no jurisdiction under s.7(1)). Employment Appeal Tribunal (Mitting J, Ms V Branney and Professor P D Wickens) allowed Hawkins' appeal on 20 July 2004. Permission to appeal to the Court of Appeal was granted and this Court allowed the respondent's appeal in [2004] EWCA Civ 1755 on 13 December 2004, setting aside the EAT order and restoring the ET decision.