When bringing a claim of discrimination, workers who are not employees or apprentices have to show that they are working under a contract personally to do work. In Town and Country Glasgow Ltd v Munro, the Employment Appeal Tribunal (EAT) held that if the worker’s role can be performed by someone else, then they cannot be said to have a "contract personally to do work".
Ms Munro, who was self-employed, belonged to a pool of four to six workers whom the company called on to work as “freelance” receptionists. She was responsible for her own tax returns, received no holiday pay and was not subject to appraisal. She could decide whether to work or not.
When she was not at work, a substitute who was usually from the pool of workers filled her role. However, the main concern for the company was not whether they were from the pool, but whether the worker could do the work. She was also able to organise cover if she was unable to work. The company exercised control over the work that she did and the way in which she performed it.
After receiving an email telling her and other part-time staff that they would be laid off “this Friday”, she walked out of the office, alleging that the company had discriminated against her because she was pregnant. To succeed in her claim, however, she had to show that her “employment” fell under the definition in section 83(2)(a) of the Equality Act.
Under section 83(2), "Employment" means
- under a contract of employment, a contract of apprenticeship or a contract personally to do work.
The tribunal agreed with Ms Munro for a number of reasons. Firstly, the company asked her to move her shift patterns away from the weekend to provide cover during the week, implying that it preferred her to anyone else. Secondly, although she had the right to decide whether to work or not, the evidence indicated that she would never leave them “in the lurch”. Thirdly, it emphasised the extent of the control that the company exercised over her work. As such, she had a "contract personally to do work".
The company appealed, arguing that as Ms Munro was at liberty to decide when she worked, it was clear that her role could be performed by a substitute. As such, she did not have a personal contract.
Upholding the company’s appeal, the EAT considered that the employment judge had failed to attach sufficient weight to the company’s willingness to accept a substitute from members of the pool of workers, or indeed anyone who was suitable for the role of receptionist. Although her role was integral to the organisation, it was not important to the company that she, as an individual, performed that role for them.
Although the helpful attitude she adopted was not required by her contract, the EAT held that this was simply indicative of the “good behaviour that ought to mark personal interactions”. When she walked out of the office after receiving the email, the company was upset not because she had breached her contract but rather because it perceived it as a breach of behavioural norms.
As the role she filled was one that could be performed by a substitute and she was at liberty to decide when she worked, the EAT concluded that her contract with the company could not be said to be personal.