Labour & European Law Review Weekly Issue 354 29 January 2014
It is often difficult for tribunals to decide if someone is an employee or a worker, not least because there is no single test. In Halawi v WDFG UK Ltd t/a World Duty Free and anor, the Employment Appeal Tribunal (EAT) held that Ms Halawi was not a worker as she did not work under a contract which required her, personally, to do the work.
Ms Halawi had worked at Heathrow Terminal 3 as a beauty consultant for a number of years. She did not have a contract of employment with the duty free outlet, World Duty Free, where she was based but instead invoiced a management agency called CSA, based on the hourly rate that they set. CSA, in turn, provided a management service to Shiseido, a cosmetics firm, whose products she sold and whose uniform she wore.
World Duty Free provided her with her airside pass but when it withdrew her store approval, she was unable to continue working. She claimed unfair dismissal and discrimination, which meant she had to show that she was either an employee or a worker of either World Duty Free or CSA by which she undertook to work personally for one or other of them.
The tribunal found, as a matter of fact, that Ms Halawi provided her services through a limited company (which she had incorporated specifically for that purpose) to CSA which acted as an agent supplying workers to a third party (Shiseido) to work in retail space controlled by World Duty Free.
She did not have a contract with either World Duty Free which provided her with the store approval that she needed to work airside; nor CSA which just provided her with training, uniform and equipment. Nor was there any “mutuality of obligation” between CSA and Ms Halawi as the agency did not have to offer her work, nor did she have to accept it.
Crucially, she was not required to do the work personally but could send a substitute for a shift (something she had actually done in practice). If she did not work, she did not get paid and had no entitlement either to sick pay or holiday pay.
The tribunal therefore concluded that she was neither an employee nor a worker, which meant that both of her claims failed.
Although the issue of whether someone is an employee or an independent contractor has proved “a most elusive question” (not least because there is no single test), the EAT said it was essentially a question of fact, having regard to all the factors and circumstances by which the relationship between the parties is characterised. In this case, it was clear that Ms Halawi did not have a contract (nor one that could be construed as a contract) with either World Duty Free or CSA.
Nor could she be a worker as she was not required personally to do the work, contrary to section 83 of the Equality Act. The fact that neither of the respondents had any control over how Ms Halawi did her work and that she could not show she was economically dependent on them all fed into the conclusion that she was not in an employment relationship of subordination.
Although the EAT was concerned (as was the tribunal judge) that Ms Halawi could have suffered discrimination but did not have the right to complain about it to a tribunal, her situation was no different from cases involving agency workers which required certain legal tests to be satisfied.