UK: Bringing On A Sub – Freelancer Not An Employee Under Equality Act

Under the Equality Act 2010, an individual is an employee and as such has protection against discrimination if they are engaged under "a contract personally to do work". In Town and Country Glasgow Ltd v Munro the EAT (Scotland) found that a freelancer was not engaged under such a contract because she had a genuine right to send a substitute to work on her behalf.

The claimant was engaged as a self-employed freelance receptionist. Although she was in a position of subordination in that the respondent directed her work, she did not receive holiday or sick pay, was responsible for her own tax affairs and could choose when she worked. In principle she could leave work at any point without providing a reason for doing so and if she did not want to work she could send a substitute from a pool of other freelancers. Theoretically she could also have sent someone not from that pool to work on her behalf, as long as they were competent. However, the employment tribunal found that the individual was nonetheless under a contract personally to do work because she was integrated into the organisation, she was very highly regarded by the respondent and in practice would never leave it "in the lurch" by leaving work when she wished.

The EAT sitting in Scotland overturned the decision. The tribunal had not given sufficient weight to the right of substitution and the fact that in practice the respondent and claimant had co-operated over working hours did not mean that this was what was required by the contract. In fact, the claimant had walked out of the office when she realised that her services would not be required over the Christmas period because of seasonal variations in work. Although this was a breach of behavioural norms, it was not a breach of contract and she was entitled to leave. As her role could be performed by a substitute and she was at liberty to decide whether to work or not, this was not a contract personally to do work and she was not an employee for the purposes of bringing a discrimination claim.

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