Market One Europe LLP v Rojas

A tribunal must determine employment status objectively from the parties’ true legal relationship. A contractual label of self-employment does not prevail where the practical relationship, assessed as a whole, supports employment.

For direct sex discrimination, unreasonable treatment and rejection of the employer’s stated reason do not alone shift or satisfy the burden of proof. The tribunal must identify facts capable of supporting an inference of discrimination and address any genuine non-discriminatory explanation apparent from its findings.

A requirement to work from the office may be a provision, criterion or practice applied at dismissal, even where it would require variation of a home-working contract. Its application may constitute indirect sex discrimination where it causes the requisite disadvantage and lacks justification.

The Employment Tribunal held that the claimant had been an employee throughout the relevant period, had been unfairly dismissed, and had suffered direct and indirect sex discrimination. It rejected redundancy as the reason for dismissal.

The employer appealed. It challenged employment status, the findings on the availability of alternative Spanish-speaking work and redundancy, the office-working requirement, and the discrimination findings. The central issues were whether the claimant’s refusal or inability to move from home-working to office-working was the true reason for dismissal, and whether the evidence supported direct or indirect sex discrimination.

1. Appeal allowed in part. The Employment Tribunal’s finding of direct sex discrimination was set aside. The remaining grounds of appeal, including those concerning employee status, unfair dismissal and indirect sex discrimination, were dismissed.
2. The Tribunal’s self-direction on employee status was correct and its conclusion was open to it. It had assessed the totality of the relationship, including personal service, mutual obligations, integration and the employer’s real and tight control. The written description of the claimant as a self-employed consultant did not determine the true legal relationship. The task was to ascertain the parties’ legal obligations objectively, consistently with Autoclenz.
3. Whether or not there was a redundancy situation within section 139 of the Employment Rights Act 1996, redundancy was not the reason for dismissal. The Tribunal had found that the claimant was dismissed because she would not or could not immediately work from the office. Its findings that suitable work was available and had not been offered were factual findings open to it.
4. The requirement that staff work in the office was a PCP applied to the claimant at dismissal. It applied to men and women, but the Tribunal was entitled to find that it disadvantaged women and was not proportionate. It therefore supported both indirect sex discrimination and unfair dismissal.
5. The direct-discrimination finding could not stand. The office-working policy applied to both sexes, and the Tribunal identified no sufficient primary facts from which sex discrimination could properly be inferred. The employer’s redundancy explanation had been rejected, but the Tribunal had itself found a genuine non-discriminatory reason: the claimant’s refusal to work in the office. Unreasonable treatment, inadequate disclosure and a false explanation could not, without independent evidence of discriminatory grounds, establish direct discrimination.

• Employment Appeal Tribunal: appeal allowed only in respect of direct sex discrimination: [2012] UKEAT 0307_11_1405.
• Employment Tribunal at Watford: decision sent to the parties on 28 March 2011. It upheld claims of employee status, unfair dismissal, direct and indirect sex discrimination, and harassment.