FREE CHAPTER from ‘A Practical Guide to Religion and Belief Discrimination Claims in the Workplace’ by Kashif Ali

CHAPTER FOUR – WHO IS PROTECTED?

It is important to understand who can bring a claim of workplace discrimination on grounds of religion or belief. It is not just employees.

Those entitled to claim are set out in Part 5 of the EA 2010, and in particular at sections 39-41. They broadly fall into the following three categories:

  1. Employees1

  2. Applicants for employment2

  3. Contract workers3


4.1 Employees

A person in employment has a broad definition for the purposes of discrimination legislation under the EA 2010. Section 83(2)(a) of the EA 2010 provides: “Employment” means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. There are therefore three broad categories of employees:

  • a contract of employment (i.e. what might be considered ordinary employees)

  • a contract of apprenticeship (i.e. apprentices)

  • a contract personally to do work (i.e. this is a more difficult category and is discussed further below).

Examples of who might be considered in employment include:

  • Permanent employees

  • Those on fixed term or short-term contracts

  • Those in their probation periods of employment

  • Apprentices

  • Locums (in certain circumstances).

  • Casual or seasonal workers

  • Those on zero-hour contracts


A contract personally to do work

The first important determining factor for deciding whether someone fits the definition of “employment” under “a contract personally to do work” is whether they are personally required to work for an organisation (in which case they are likely employees), or whether they can use a substitute (in which case they are not likely to be employees).

So for example, in Halawi v (1) WDFG UK Ltd (T/A World Duty Free) (2) Caroline South Associates4 the Court of Appeal held that a person working in a duty free outlet at an airport, who provided her services through a company which she had set up for that purpose, was neither an employee nor a worker within the provisions of section 83(2) of the EA 2010. She had no contract of employment and she was not required to work personally at her job but could get another person to substitute for her. Although it was rarely used, the power of substitution was not a sham.

This situation might be contrasted with a locum doctor, who has set up a limited company for tax purposes, but unquestionably has to provide personal service and cannot send in a substitute to work for him.

The second potential determining factor for deciding whether someone fits the definition of “employment” is whether or not they are an independent provider of services who are not in a relationship of subordination with the person who receives the services5.

In (1) Z Windle (2) F Arada v Secretary Of State For Justice6, W worked as an interpreter for a range of work providers, including the Courts and Tribunals Service (HMCTS). She was registered on the National Register of Public Service Interpreters. HMCTS interpreters were issued with a badge inscribed with “Tribunal Service Interpreter” as part of the security arrangements and to show that the interpreter was recognised by the service. W’s services were governed by written terms and conditions. There was no guarantee of work and no obligation on her to accept work when offered. No provision was made for holiday pay, sick pay or pension. W regarded herself as self-employed and was treated as such by the Revenue. HMCTS issued a handbook for freelance interpreters which described them as self-employed and stipulated that an interpreter was not permitted to send a substitute once an assignment had been accepted. W brought proceedings based on race discrimination, alleging that she had been treated less favourably than British sign language interpreters. The tribunal, relying on Jivraj v Hashwani [2011] UKSC 40, held that W was not in a subordinate position to the respondent employer when providing her contractual personal services to HMCTS and was therefore not an employee under section 83(2) – notwithstanding that the she was required to provide personal service and all the other circumstances of this case. The Court of Appeal agreed.

Therefore an employee under “a contract personally to do work” must be someone contracted to “personally” perform work and be “in a relationship of subordination” with the person who receives the services.


4.2 Job applicants

An employer must not harass7 a job applicant. Or discriminate8 against him or her or victimise9 him or her:

  1. in the arrangements the employer makes for deciding to whom to offer employment

  2. as to the terms on which employer offers an applicant employment

  3. by not offering an applicant employment.

Examples of discriminating against job applicants might include:

  • Not interviewing a person because of their religion or belief, or not offering them a job for this reason

  • Mocking or asking inappropriate and upsetting questions about someone’s religion or belief during interviews

  • Offering someone a job but on less pay than you would normally offer for that position because of that person’s religion or belief.


4.3 Former employees

In some circumstances former employees maybe protected from discrimination.

Section 108(1) of the EA 2010 provides:

108 Relationships that have ended

  1. A person (A) must not discriminate against another (B) if—

  1. the discrimination arises out of and is closely connected to a relationship which used to exist between them, and

  2. conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.

  1. A person (A) must not harass another (B) if—

  1. the harassment arises out of and is closely connected to a relationship which used to exist between them, and

  2. conduct of a description constituting the harassment would, if it occurred during the relationship, contravene this Act.”

Example of such post-employment discrimination or harassment might include:

  • Providing a discriminatory or deeply unfair reference to a former employee’s new employer because they are Sikh.

  • Spreading false rumours that a Muslim employee would often drink alcohol at work, knowing that the Muslim employee considered alcohol was not permitted under his religion, and this would cause him deep distress.

Section 108(1) of the EA 2010 also permits former employees to bring claims of post employment victimisation10.

So for example if a pharmacist employed at a supermarket pharmacy raised complaints of religious discrimination, but then left his employment as a pharmacist, and some months later applied for locum work at the same supermarket but was refused this because he had previously raised discrimination complaints, that pharmacist may have a claim for victimisation.

4.4 Contract workers

Section 41 of the EA 2010 also protects contract workers11. A “contract worker” is an individual supplied to a principal in furtherance of a contract.

A “principal” is a person who makes work available for a “contract worker”. A contract worker is defined as an individual who is employed by another person, and supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it)12.

Examples of contract workers might include:

  • If company A contracts with company B to use B’s drivers to deliver company A’s goods to its customers, then those driver’s may be contract workers, and company A should not discriminate against them on grounds of their religion or belief.

  • An agency worker taken on to work for a few days to cover staff sickness absence may be a contract worker.

  • Someone on a 3-month secondment from their law firm to an investment bank may be a contract worker.

Section 41(2) of the EA 2010 provides a principal must not, in relation to contract work, harass a contract worker. Sections 41(1) and 41(3) of the EA 2010 provide a principal must not discriminate against or victimise a contract worker—

  1. as to the terms on which the principal allows the worker to do the work;

  2. by not allowing the worker to do, or to continue to do, the work;

  3. in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service;

  4. by subjecting the worker to any other detriment.”

Examples of discrimination might include:

  • Name calling or mocking someone because of their religion or belief

  • Not allowing a contract worker access to the staff canteen because of their religion or belief

  • Going to the employer of the contract worker and asking them to send an alternative contract worker because you do not want a contract worker of a particular religion or belief in your organisation.


4.5 Volunteers

Volunteers can operate under a very large variety of arrangements. From an informal arrangement involving turning up to help at a charity shop as and when you like, to a formal written arrangement for ongoing voluntary work to be personally provided in exchange for expenses, to voluntary work the purpose of which is akin to work experience or an internship. It is therefore difficult to advise with regards to volunteers and the EA 2010. Further there is very limited case law in this area clearly setting out relevant considerations.

It is generally considered that unpaid volunteers who work with charities have no protection under the EA 2010 and discrimination law13. This is because, as a rule, their working arrangements fall outside the definition of “employment” under section 83(2)(a) of the EA 2010. Even a paid volunteer may not necessarily be covered as an employee under EA 201014.

However there are some situations where certain types of volunteers may potentially be protected under the EA 2010. For example:

  • where an individual has a legal contract to personally to do work (and thy are in a relationship of subordination) regardless of whether the individual is paid for the work they do15

  • where the person is being provided vocational training by an employment service provider (i.e. practical work experience or an internship undertaken for the purposes of a person’s vocational training)16

  • they are special constables17 or public officers18

  • where an organisation uses volunteering as a way to assess a particular individual’s suitability to become an employee in that organisation (i.e. the volunteering is an arrangement for deciding who to offer employment to)19.


4.6 Specific occupations

Part 5 of the EA 2010 has special provisions for Police Officers (sections 42-43 of the EA 2010); Partners (sections 44-46 of the EA 2010); The Bar (sections 47-48 of the EA 2010); Office holders (sections 49-52 of the EA 2010); and so on which are not being considered in this text.

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1See sections 39(1), 39(4), and 40(1)(a) of the EA 2010.

2See sections 39(1), 39(3), and 40(1)(b) of the EA 2010.

3See section 41 of the EA 2010.

4Halawi v (1) WDFG UK Ltd (T/A World Duty Free) (2) Caroline South Associates [2014] EWCA Civ 1387 (at paragraph 49).

5See Jivraj v Hashwani [2011] UKSC 40 per Lord Clarke at paragraph 34-36.

6(1) Z Windle (2) F Arada v Secretary Of State For Justice [2016] EWCA Civ 459 at paragraphs 8-10, 13.

7Section 40(1)(b) of the EA 2010

8Section 39(1) of the EA 2010

9Section 39(3) of the EA 2010

10Rowstock Ltd v Jessemey [2014] EWCA Civ 185

11Section 41 of the EA 2010

12Section 41(5) of the EA 2010

13X v Mid Sussex Citizens Advice Bureau and another [2012] UKSC 59

14In Breakell v West Midland Reserve Forces’ & Cadets’ Association Named As Shropshire Army Cadet Force (2011) [UKEAT/0372/10/RN] an Army Cadet Force Adult Instructor was considered a volunteer and not in “employment” as defined by s68(1) of Disability Discrimination Act 1995. In this case where there was no legal obligation to do or provide work and payment was due only if the person worked.

15Section 83(2)(a) of the EA 2010

16Sections 55-56 of the EA 2010

17Sections 42-43 of the EA 2010

18Sections 50-52 of the EA 2010

19 Section 39(1)(a)of the EA 2010