It is only less than two months since Don Lane, a worker for courier firm DPD, died after DPD fined him £150 for having the audacity of attending a necessary hospital appointment. As a ‘self-employed’ worker workers like Lane have
very few effectively no employment rights. For example, fining a worker for attending a disability related medical consultation is potentially disability discrimination but could such a person make such a claim?
A firm such as DPD would probably, as Pimlico Plumbers did in the case that started in the Supreme Court today, say no and the basis of the of that denial is section 83(2)(a) of the Equality Act 2010 which states that a person may make a claim for discrimination if they are in “employment under a contract of employment … or a contract personally to do work”. Since many alleged self-employed workers do have a right of substitution – the ability to ask someone else to do the work (a substitute) – they do not have a contract to personally to do work and therefore they are unable to bring a claim for discrimination. The facts underlying the Pimlico case are worth repeating and bare more than a passing resemblance to the tragedy that faced Don Lane.
Mr Smith had worked for Pimlico for a few years as a plumber but had a heart attack. He wanted to reduce his hours of work but after making a request to do so which was refused Mr Smith was dismissed. He made a claim for unfair dismissal (which was struck out as he was not an employee), unpaid holiday pay as a worker (under EU law) and discrimination. The ET, EAT and Court of Appeal all found in favour of Mr Smith on the worker and s.83 points but it is this the Mr Charlie Mullin is challenging.
Whilst the judgement on worker status will be important it is the decision of standing to bring claims under the Equality Act that is most important and potentially far reaching.
The law on employment status in the UK is a farce with Parliament mandating that those with the most tenuous status having the least statutory rights to protect them from unscrupulous and domineering ’employers’ whilst employees who tend to me more secure in employment having the most.
Mr Mullins is doing the media rounds on how the case is different from Uber and his position is common sense but the bottom line is his argument is that workers like Mr Smith who have a claim they have been discriminated against and have had their livelihood’s destroyed should have no right to claim discrimination at all. That is not common sense, that is naked exploitation.
It is Parliament that have allowed this joke of employment rights (non)protection where the most vulnerable workers are given the lowest level of protection and right of redress to remain in place for so many years and, for all the noises, I do not see that the Taylor Reforms will make any real difference.
I hope that the Supreme Court has the sense to ensure that the attempt of Mullins, who will have every rogue employer in the country rooting for him, to remove most gig economy and self employed workers from the protection of UK anti-discrimination law fails.