London Borough Of Camden v Pegg & Ors

A person engaged through an agency may be employed under a contract personally to do work for the extended definition of employment in Disability Discrimination Act 1995, even though the person was free to decline an assignment initially. It is sufficient that, after accepting the assignment, the person owes the agency an express contractual obligation to perform the work personally. Mingeley does not require a different result where the worker’s contract with the agency creates those obligations and the agency pays the worker.

Ms Pegg was supplied by Randstad Care Ltd, through another agency, to work for the London Borough of Camden as a Senior School Travel Planning Officer. She was paid by Randstad and, once she accepted the assignment, her contractual terms required her to comply with duties concerning its performance. She was fully integrated into Camden’s organisation and had no right to provide a substitute.

The Employment Tribunal held that Randstad employed her within section 68(1) of the Disability Discrimination Act 1995 and that she was a contract worker supplied to Camden as principal under section 4B(9). Camden appealed, contending that her freedom to refuse an assignment meant that she was not contractually obliged personally to do work.

1. Appeal dismissed. The Employment Tribunal was correct to hold that Ms Pegg was employed by Randstad within the extended definition in section 68(1) of the Disability Discrimination Act 1995. Its conclusion that Camden was the principal for the purposes of section 4B(9) consequently remained undisturbed.

2. The material question was whether, once the assignment had been accepted, Ms Pegg owed Randstad a contractual duty to perform the work personally. Her contract imposed express duties on her during an assignment and Randstad paid her for the work. Those features brought the arrangement within section 68(1).

3. Freedom to decline an assignment before accepting it did not prevent the resulting assignment contract from being a contract personally to do work. The statutory wording did not justify excluding a worker merely because the personal obligation began only upon acceptance of the assignment.

4. Mingeley v Pinnock and anr (Trading as Amber Cars) [2004] ICR 727 was distinguishable. The taxi driver there had no contractual obligation to perform work for the taxi operator; his relevant obligation was only to pay for access to its booking system, and any fare contract was with the customer. Ms Pegg, by contrast, owed contractual duties directly to Randstad in respect of the accepted assignment.

5. The Tribunal did not need to decide the separate submission about the weight to be given to the absence of a substitution power. On any view, Ms Pegg’s accepted assignment imposed a personal obligation. The protective cross-appeal was also dismissed because the main appeal failed.

• Employment Appeal Tribunal: dismissed Camden’s appeal and upheld the Employment Tribunal’s jurisdictional conclusions.
• Employment Tribunal: judgment dated 23 May 2011 held that Ms Pegg was employed by Randstad within section 68(1) and was a contract worker supplied to Camden as principal under section 4B(9) of the Disability Discrimination Act 1995.