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

The Court of Appeal held that the appellant was not an employee of WDF for the purposes of section 83(2) of the Equality Act 2010. The court applied the autonomous EU law concept of "employee" (or "worker") as explained in Allonby and later authorities, focussing on two key criteria: (i) an obligation to perform services personally and (ii) subordination (the provision of services for and under the direction or control of another). The Employment Tribunal’s factual findings that the appellant had a genuine right of substitution, that WDF's control was limited to the premises rather than the manner of work, and that the appellant was not integrated into WDF’s business were decisive. The Employment Appeal Tribunal’s rejection of the contention that EU law required a broader approach to create an employment relationship was upheld. The court refused permission to amend grounds to rely on the Charter and declined to refer questions to the Court of Justice of the European Union.

Background and parties

The appellant, a beauty consultant, worked airside at a Heathrow duty-free outlet selling Shiseido products. She provided her services through a company she controlled (N Ltd) and was engaged via an intermediary (Caroline South Associates) who had arrangements with Shiseido and WDF (which managed the retail outlet). In June 2011 WDF withdrew her airside pass, effectively preventing her from working. The appellant brought proceedings alleging discriminatory dismissal; the issue before the Court of Appeal was whether she was an employee of WDF under section 83(2) of the Equality Act 2010.

Procedural history

• The Employment Tribunal (Judge R Lewis) found the appellant was not an employee of WDF (ET decision dated 15 May 2012).
• The Employment Appeal Tribunal (Langstaff J, UKEAT/0166/13GE) dismissed the appellant’s appeal on 4 October 2013.
• The appellant appealed to the Court of Appeal, which dismissed the appeal on 28 October 2014.

Nature of the application / relief sought

The appellant characterised WDF's withdrawal of her airside pass as a dismissal and sought to establish she was an employee of WDF so as to bring discrimination claims under Part 5 of the Equality Act 2010.

Issues framed by the court

1. Whether the appellant fell within the definition of "employment" in section 83(2) EA 2010, specifically employment under a contract personally to do work.
2. Whether EU law autonomy of the term "worker" required a different approach from the domestic wording, particularly whether subordination or economic dependence alone could suffice and whether personal service was required.
3. Whether the Employment Tribunal’s factual findings should be disturbed and whether a reference to the CJEU or reliance on the Charter was required.

Court’s reasoning and conclusions

• The court confirmed that domestic provisions implementing EU equality law must be interpreted compatibly with EU law but that the statutory wording in section 83(2) ("contract personally to do work") remained relevant. Authorities such as Allonby and Hashwani (Jivraj v Hashwani) were applied to identify the key criteria: personal performance and subordination.
• The Employment Tribunal’s findings were determinative: the appellant had a genuine right of substitution, received pay via intermediaries, had no entitlement to holiday or sick pay, and was not integrated into WDF’s business. WDF’s control related to premises and image rather than direct control over how the appellant performed her duties.
• The Court of Appeal accepted that while EU law should not be applied restrictively, it did not displace the statutory requirement for personal service in the third category of section 83(2). The court also held that the principle of effectiveness and Charter arguments did not assist in altering the legal test or outcome in this case.
• The court therefore dismissed the appeal, upholding the ET and EAT conclusions that the appellant was not an employee of WDF.

The appeal is dismissed. The Court of Appeal upheld the Employment Tribunal and Employment Appeal Tribunal findings that the appellant was not an employee of WDF under section 83(2) of the Equality Act 2010 because the requirements of personal performance and subordination were not satisfied; substitution was genuine and WDF's control was limited to premises rather than the manner of work. The court found no incompatibility with EU law and refused permission to rely on the Charter or to refer the case to the CJEU.

Employment Tribunal (Judge R Lewis) decision dated 15 May 2012: the claimant was not an employee of WDF for the purposes of section 83(2) EA 2010. Employment Appeal Tribunal (Langstaff J, UKEAT/0166/13GE) decision dated 4 October 2013: dismissal of the claimant's appeal. Court of Appeal ([2014] EWCA Civ 1387) decision dated 28 October 2014: appeal dismissed.