The claimant in Halawi v WDFG UK Ltd (t/a World Duty Free) worked as a beauty consultant in airside duty free at Heathrow Airport. She formed a limited company, which invoiced a company (CSA) for the hours she worked each month. CSA provided staff (including the claimant) but the duty free outlet in which the claimant worked was actually operated by another company (WDF). WDF withdrew the claimant's pass, with the result that she was no longer able to work airside. In order to argue that she had been discriminated against, the claimant first needed to show that she was an employee within the meaning of the Equality Act 2010; in other words, that she was employed "under a contract of employment, a contract of apprenticeship or a contract personally to do work".
By the time the case reached the EAT, the issue was whether the claimant could show that she was employed under a contract "personally to do work". The EAT upheld the tribunal's reasoning that she was not. There was no contract at all between the claimant and WDF and the contract with CSA was through the limited company. Even if she could show that there was a contract in place, it contained a substitution clause which the claimant had apparently relied upon. This meant she was unable to show that she was under an obligation to provide services personally – she was contractually entitled to send someone else to work in her place.
In the Court of Appeal the claimant argued that under European law anyone who was effectively in a position of dependency should be regarded as employed and able to enforce their rights not to be discriminated against. But the Court of Appeal dismissed the appeal, confirming that EU law had been correctly applied (and rejecting a claim for the case to be referred to the European Court).
The claimant tried to rely on the decision earlier this year in Bates van Winkelhof v Clyde & Co LLP (where the Supreme Court had said that the absence of subordination did not prevent there being an employment relationship). But Halawi was very different; because independence was not a necessary feature of the claimant's work, the requirement for subordination had to be satisfied. The tribunal had given careful consideration to the facts of the case and concluded that WDF did not have control over her, beyond the control it exercised over the workplace. The lack of subordination was consistent with her lack of integration into WDF's business. In addition, the substitution power (despite being rarely used) was not a sham or something that could be disregarded.
Lady Justice Arden did say that she, like the EAT, had an "uneasy feeling" that the complex arrangements had the effect that the claimant had no remedy for discrimination even if she had been a victim of it, but it was bound to hold that the conclusion of the tribunal that the claimant could not show that she was an employee flowed from the factual findings.