Halawi v WDFG UK Ltd (t/a World Duty Free) (Rev 1)

For EU equality law, employment is an autonomous concept. A formal domestic contract of employment is not decisive. The relationship must, however, involve an agreement for the individual personally to provide services and a relationship of subordination, assessed by examining its substance and all the circumstances.

A genuine and workable right to send a substitute is inconsistent with personal performance. Control of access to, and standards within, a workplace is not necessarily control over how work is done. The absence of control and integration may therefore show that an individual is not employed by the workplace operator for the purposes of Equality Act 2010, section 83(2).

The appellant was a beauty consultant selling Shiseido products in an airport duty-free outlet managed by WDF. She supplied her services through a company she controlled, which invoiced a service company engaged by Shiseido. WDF withdrew her airside pass, preventing her from working at the outlet.

The Employment Tribunal held that she was not employed by WDF for the purposes of section 83(2) of the Equality Act 2010. It found that she could arrange a substitute and that WDF controlled the premises rather than her work. The Employment Appeal Tribunal dismissed her appeal: UKEAT/0166/13GE.

She appealed, contending that EU equality law treated her as WDF’s employee notwithstanding the contractual arrangements and her substitution right.

1. Appeal dismissed. The appellant was not an employee of WDF for the purposes of section 83(2) of the Equality Act 2010.
2. The domestic provision had to be read compatibly with the autonomous EU-law meaning of employee. A domestic contract formally recognised as a contract of employment was not essential. Nevertheless, the applicable criteria required an agreement for the individual personally to provide services, remuneration, and subordination to the putative employer. The relationship had to be assessed in substance and by reference to all the circumstances. The court applied the approach in Allonby and Jivraj v Hashwani [2011] 1 WLR 1872.
3. Subordination was not a freestanding and universal characteristic in every statutory employment context. The court assumed that the refinement stated in Bates van Winkelhof v Clyde & Co LLP [2014] 1 WLR 2047 could apply to discrimination law. It did not assist the appellant. The Tribunal had found that WDF did not control the way she performed her work, beyond its control of the workplace. The absence of such control was consistent with her lack of integration into WDF’s business.
4. The Tribunal’s finding that the appellant had a genuine right to substitute another approved consultant was fatal to personal performance. The right had operated in practice and was neither a sham nor capable of being disregarded merely because it was seldom exercised.
5. The Court of Appeal could determine only an error of law and could not remake the Tribunal’s factual findings. Those findings supported the legal conclusion reached below. The principle of effectiveness did not create a remedy where no relevant right against WDF had been established. The Charter argument was both too late and incapable of changing the EU-law meaning of employee. No reference to the CJEU was required.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the conclusion that the appellant was not employed by WDF: [2014] EWCA Civ 1387.
• Employment Appeal Tribunal: Langstaff J, President, dismissed the appellant’s appeal from the Employment Tribunal on 4 October 2013: UKEAT/0166/13GE.
• Employment Tribunal: on 15 May 2012, held that the appellant was not an employee of WDF for the purposes of section 83(2) of the Equality Act 2010.