Town and Country Glasgow Ltd v Munro

For Equality Act 2010 purposes, a contract is not one personally to do work where the individual has a substantially unrestricted right to provide a substitute. A restriction requiring only that a substitute be suitably competent does not make the performance personal. The decisive question is whether the engager requires the individual’s own performance, rather than simply the performance of the role.

Control, integration and subordination may be relevant to employment status, but they cannot overcome an arrangement under which the work is freely interchangeable. Contractual rights, assessed principally when the engagement began, prevail over later co-operation, personal preference or expectations that the individual will not exercise a right to leave or arrange cover.

The claimant was a self-employed freelance receptionist who formed part of a pool of workers used by the employer. She brought a pregnancy or maternity discrimination claim and relied on section 83(2)(a) of the Equality Act 2010, contending that she worked under a contract personally to do work.

The Employment Tribunal held that the arrangement had that character. The employer appealed. It accepted that the claimant was not an employee or apprentice, but contended that her freedom not to work and to arrange a competent substitute meant that her own performance was not required.

The central issue was whether the contractual substitution arrangements deprived the agreement of the personal character required by section 83(2)(a).

1. Appeal allowed. The Employment Tribunal erred in holding that the claimant’s agreement was a contract personally to do work within section 83(2)(a) of the Equality Act 2010.

2. A contract of that kind must have a personal quality. Substitutionary performance is generally inconsistent with that quality. An unfettered substitution right is incompatible with personal performance. A conditional right may be compatible or incompatible depending upon the nature and degree of the restriction. A right limited only by the requirement that the substitute be suitably qualified will ordinarily be incompatible with personal performance.

3. The claimant was contractually free to decide whether to work and could be absent without giving a reason. The employer did not confine substitution to illness or holidays. Although substitutes usually came from a pre-approved pool, the employer’s principal concern was that the replacement was reasonably competent. It would accept a suitable person unknown to it. The employer also permitted the claimant to organise cover. Its control over the identity of a substitute was therefore weak and the role, rather than the claimant’s own services, was what mattered.

4. The Employment Tribunal placed undue weight on control, routine duties, recruitment by advertisement and interview, later appreciation of the claimant’s work, and the practical co-operation of the parties. Those matters did not alter the contractual entitlement to substitute or leave work. Later conduct could assist in discerning unwritten terms, but later preference for the claimant could not establish that she had originally been engaged on a personal basis.

5. The claimant’s helpful conduct reflected behavioural expectations, not a contractual duty to remain at work. Since the work was interchangeable and the substitution right was largely unfettered, the agreement lacked the personal character required by section 83(2)(a).

• Employment Appeal Tribunal: allowed the employer’s appeal and reversed the Employment Tribunal’s conclusion that the claimant was engaged under a contract personally to do work.
• Employment Tribunal: held that the claimant’s arrangement was a contract personally to do work for the purposes of section 83(2)(a) of the Equality Act 2010.