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The meaning of “employee” for the purposes of s.83(2) of the Equality Act 2010: Halawi v WDFG UK Ltd t/a World Duty Free [2014] EWCA Civ 1387

In Halawi v WDFG UK Ltd t/a World Duty Free [2014] EWCA Civ 1387, the Appellant, Ms Halawi, was a beauty consultant selling cosmetics “airside” at Heathrow Airport. Her employment situation with the Respondent (“WDF”) was convoluted.

She provided her services through an employee controlled company to a service company. WDF managed the workplace for the cosmetic company for whom her services were engaged.

Ms Halawi argued that she was an employee of WDF for the purposes of s. 83(2) of the Act.  Her substantive complaint was that she had been discriminated against on the grounds of her religion when WDF removed her airside pass, thereby effectively dismissing her, as she required her pass to obtain access to the store.

The ET and EAT both found against Ms Halawi. It was held that Ms Halawi did not have a contract personally to do work within the meaning of s.83(2) of the Act. WDF exercised no effective control over Ms Halawi and she was at liberty to, and did, arrange a substitute for her services.

Ms Halawi’s main ground of appeal was that personal service was not a necessary ingredient to establish a relationship of employment. All she was required to establish as between herself and WDF was a subordinate relationship with the required elements of economic dependency and value.

The Court of Appeal dismissed Ms Halawi’s claim. In a well-reasoned judgment, Arden LJ reiterated that in determining such cases the applicable criteria was that laid down by EU law. The criteria required that the putative employee should (a) agree personally to perform services and (b) be subordinate to the employer; namely, the employee had to be bound to act on the employer’s instruction.

Looking at the substance of the situation, Ms Halawi had a power of substitution that was inconsistent with the personal performance of services. Further, WDF did not have effective control over Ms Halawi beyond the control it exercised over the workplace.

Elizabeth Dwomoh / 1st Nov 2014


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