Halawi v WDFG UK Ltd (t/a World Duty Free) & Anor

For discrimination protection under section 83 of the Equality Act 2010, a claimant relying on a contract personally to do work must establish both a contract and an obligation of personal service. A purposive interpretation informed by EU law does not permit those express statutory requirements to be disregarded.

Whether there is an employment relationship is fact-sensitive. The court must examine all the circumstances, including whether services are performed under another’s direction and whether there is subordination. An unfettered and genuinely exercisable substitution right is inconsistent with a personal obligation to work. The absence of contractual relations, personal service and control defeated the claim.

The claimant worked as a beauty consultant selling Shiseido products within the first respondent’s airport duty-free outlet. She provided her services through a company she had incorporated. That company invoiced the second respondent, which arranged staffing for Shiseido. The first respondent withdrew the claimant’s airside approval, and she alleged discrimination.

The Employment Tribunal held on a preliminary issue that she was not an employee, worker, or contract worker. The remaining appeal challenged only its conclusion that she was not in employment for section 83 of the Equality Act 2010. The claimant argued that EU equality law required the Tribunal to look beyond contractual form and personal service to the practical relationship of subordination.

1. Appeal dismissed. Section 83(1)(a) required a contract personally to do work. The claimant had to establish both a contract with the relevant respondent and an obligation personally to perform work. The conforming interpretation principle did not justify reading either “contract” or “personally” out of the statutory language.

2. The Employment Tribunal was entitled to find that neither respondent had contracted with the claimant personally. The evidence established a relationship between the second respondent and the claimant’s company, not the claimant. The first respondent’s store approval and workplace rules did not create a contract with her.

3. In any event, the Tribunal’s unchallenged findings established no personal-service obligation. The claimant could refuse shifts, withdraw from shifts and send a substitute. The substitution right was not theoretical: it had been exercised in practice. There was also no obligation on either respondent to provide work or pay her.

4. The EAT accepted that EU law requires a realistic, all-circumstances examination of whether services are performed under another’s direction in a relationship of subordination. The Employment Tribunal had effectively undertaken that inquiry. The lack of control, the claimant’s freedom over assignments and substitution, and the absence of evidence of economic dependence supported its conclusion. The appearance to an observer that the claimant worked as a shop assistant could not displace the legal requirements.

5. The second respondent’s application for costs was refused. Under rule 34A of the Employment Appeal Tribunal Rules 1993, the appeal was not unreasonable or misconceived, particularly as permission had been granted and the relationship with the second respondent was not straightforward.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s conclusion that the claimant was outside section 83 of the Equality Act 2010 was upheld.
• Employment Tribunal (Reading): On 20 June 2012, Employment Judge Lewis held at a preliminary hearing that the claimant was not an employee, worker, employee for section 83 purposes, or contract worker.