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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

  1. Introduction
  2. Disability
  3. Discrimination
  4. Employment
  5. Services
  6. Education
  7. Advice & links

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Communications Forum.
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Employment: who is covered

The Equality Act's employment provisions are not limited to employees.

Key points

  • Protection under the Equality Act includes
    • some self-employed
    • often ex-employees
    • volunteers in some cases
    • various others such as partners and contract workers.
  • There is an exclusion for the armed services.

Employees

The Equality Act employment provisions apply to 'employees' (except for the armed services).

Normally it will be very clear who is an employee, as opposed to 'self-employed'. Sometimes the distinction is more difficult: see the guidance on it at direct.gov.uk: Working out your employment status: employees. However, the distinction will probably not matter because some self-employed people are covered by the Equality Act anyway - see next heading.

Protection for employees often extends to events outside work: see Who is liable: Liability for employees.

A person who stammers was turned down as a driving instructor, but failed in his disability discrimination case because he was looking to obtain a franchise - he was not an applicant for 'employment'.
Whittick v British School of Motoring (link to stammeringlaw.org.uk), Employment Tribunal, 2002.

Some self-employed are included

'Employment' in the Equality Act is defined to include "employment under ... a contact personally to do work" (s.83(2) EqA). However, it seems this does not include someone who is truly an independent provider, even if they contract to to work personally:

The Supreme Court held that an arbitrator was not within Equality Act 2010. It was relevant whether the person performs services for and under the direction of the other party, as opposed to being an independent provider of services who is not in a relationship of subordination. The Supreme Court also thought it would be surprising if a customer who engaged a person on a one-off contract, as a plumber for example, would be subject to the whole gamut of discrimination legislation.
Jivraj v Hashwani (link to bailii.org), Supreme Court, July 2011

Former employees

Former employees are protected after the end of their employment if the discrimination or harassment -

  • "arises out of and is closely connected to" the employment, and
  • would contravene the Equality Act had it occurred during the employment.
    (There is a separate test for the reasonable adjustment duty.)

An example is a negative job reference for an ex-employee, if it is discriminatory.

It not clear whether victimising a person after they have left employment is covered by the Act.

(S.108 EqA; Employment Code of Practice paragraphs 10.57-10.62)

Volunteers

According to current case law, many volunteers are not protected by the employment provisions of the Equality Act. The main situations where a volunteer may be protected within the employment provisions are:

  • where the person has a legal (employment) contract obliging them to work. This may be either as an 'employee' (above) or as someone who 'contracts personally to do work' (above).
  • work experience (subject to some exceptions). This is treated as 'vocational training' and therefore as 'employment services' under s.56 EqA.
  • it is unlawful for an employer to discriminate in the arrangements it makes for deciding to whom to offer employment (s.39(1)(a) EqA). So the Equality Act could apply if an organisation uses volunteering to assess an individual's suitability for particular work there.
  • special constables, as 'police officers' (see below).

It has been argued that European Union law requires greater protection for volunteers. However, the arguments have so far been rejected by UK courts: X v Mid Sussex Citizens Advice Bureau (link to www.employmentcasesupdate.co.uk) [2011] , Court of Appeal. It is understood this case is under appeal to the Supreme Court.

More categories covered by the Equality Act

There are various other groups of people who are protected against disability discrimination by the employment provisions of the Equality Act. In some cases the normal rules are adapted.

Contract workers (s.41 EqA, and Employment Code of Practice from para 11.2). This is basically where your employer supplies you to someone else to work. Examples include: staff employed and supplied by an agency; and a service company supplying employees to another group company. Under the special rules for contract workers, the person to whom the employee is supplied has Equality Act obligations as well as the legal employer.

Apprentices, where the person is employed under a contract of apprenticeship (s.83(2) EqA);

Police officers, including police cadets, special constables, and those in private constabularies such as the British Transport Police (s.42 and 43 EqA, and Employment Code of Practice from para 11.15);

Certain office or post holders (s.49 to 52 EqA, and Employment Code of Practice from para 11.31)

Partners and prospective partners, as regards partnerships and LLPs (s.44 to 46 EqA, and Employment Code of Practice from para 11.18)

Work experience - see above Volunteers.

Barristers and their pupils in England and Wales (s.47 EqA)

Advocates' pupils in Scotland and, to an extent, advocates themselves (s.48 EqA)

Local councillors. There are some limitations on councillors' rights - for example failure to be appointed is not covered. (s.58-59 EqA, and Employment Code of Practice from para 11.56)

Exclusion of the armed forces

Service in the armed forces is excluded from the Equality Act employment provisions on disability (EqA Sch 9 para 4(3)).

The Government has said this exclusion is "because Armed Forces personnel need to be combat effective in order to meet a world-wide liability to deploy, and to ensure that military health and fitness remain matters for Ministry of Defence (MoD) Ministers based on military advice, not for the courts."

Charities etc

There are also certain exceptions relating to disabled charities and to supported employment (s.193 EqA).