Gillian Philip v Working Partners Limited & Anor

The appeal concerned whether the claimant, a writer who produced text for a fiction packager and whose contract was terminated after a social-media post, was a “worker” under section 230(3)(b) of the Employment Rights Act 1996 and therefore an “employee” for the purposes of section 83(2)(a) of the Equality Act 2010. The Employment Judge had held, after a preliminary hearing and detailed factual findings, that the claimant was not a worker under limb (b) and so could not bring the discrimination claim under section 83. The Employment Appeal Tribunal dismissed the appeal. It held that the Employment Judge had identified and applied the correct statutory test, had considered relevant authorities (including Bates van Winkelhof, Uber v Aslam and Sejpal), had not relied on irrelevant matters, and had reached conclusions on factual issues (control, integration, income, use of agents, equipment and hours) that were open to him on the evidence.

The claimant, a professional writer, entered into a series of contracts between 2011 and 2019 with the first respondent (a fiction book packager) to provide text for a children’s book series; the second respondent published the books. The claimant also participated in promotional tours. After the claimant posted a tweet in June 2020 expressing support for another author on gender/biological sex issues, the first respondent terminated the contract. The claimant issued discrimination claims against the respondents. The respondents raised preliminary objections that the claimant was not an "employee" within section 83(2)(a) Equality Act 2010 and not a "worker" under section 230(3)(b) Employment Rights Act 1996; the Employment Judge (EJ Kemp) heard evidence at a preliminary hearing and dismissed the claim on the basis that the claimant was not an employee/worker.

The appeal to the Employment Appeal Tribunal was limited to the legal question whether EJ Kemp was wrong to hold the claimant was not a worker/employee for the statutory purposes relied on. The EAT reviewed the statutory test under section 230(3)(b) ERA (three elements: a contract to perform work or services, personal performance, and that the other party is not a client or customer of a profession or business carried on by the individual) and considered appellate authority including Bates van Winkelhof, Uber v Aslam, Sejpal and Catt.

The issues framed by the court were whether (i) the claimant carried on a profession or business undertaking, and (ii) whether the first respondent was a client or customer of that undertaking. The EAT summarised the Employment Judge’s extensive factual findings and emphasised the appellate principle that weight and primary fact-finding are for the tribunal unless plainly wrong.

The EAT rejected the claimant’s criticisms that the Employment Judge failed to take into account personal service, the absence of a right of substitution, or that he misapplied concepts of control, integration or autonomy. The EAT also rejected submissions about alleged perversity in findings on hours, use of equipment, income (advances and royalties), reliance on agent arrangements, and the absence of standard form contracts. The EAT held that EJ Kemp properly applied the statutory test to the facts, took account of relevant authorities and principles, and that his conclusion that the claimant was not a worker (and hence not an employee for section 83) was open to him on the evidence. The EAT therefore dismissed the appeal.

The appeal is dismissed. The Employment Judge had correctly identified and applied the statutory test under section 230(3)(b) Employment Rights Act 1996 (and thereby section 83(2)(a) Equality Act 2010), properly considered relevant authorities and evidence, did not take into account irrelevant matters or omit material considerations, and reached factual conclusions open to him. Accordingly the claimant was not a "worker" under limb (b) and not an "employee" for the purposes of section 83, so the discrimination claim could not succeed.

Employment Tribunal preliminary hearing (EJ Kemp), preliminary judgment dismissing claim on worker/employee status, 30 June 2022 (preliminary hearing 8–10 June 2022). Appeal to Employment Appeal Tribunal: Gillian Philip v Working Partners Limited & Anor [2024] EAT 43 (decision 8 April 2024).