In this post we’ll take a look at a recent news article and Supreme Court decision to examine who can – and who can’t – make a claim for discrimination in the Employment Tribunal under the Equality Act 2010.
- What is discrimination under the Equality Act 2010?
- Who can make a claim for discrimination in the Employment Tribunal?
- What categories of “workers” can’t make a claim for discrimination?
- What are the implications for employers of the recent Supreme Court decision?
What is discrimination under the Equality Act 2010?
This is a rather broad question – there are, in fact, multiple types of discrimination listed under the Equality Act 2010. We’ll address these in a moment. However, a broad definition of discrimination is when a person with (or because of) a protected characteristic is subjected to some form of detriment because of the conduct of their employer or a colleague. Such conduct can be intentional or unintentional, direct or indirect. The various types of discrimination listed under the Equality Act 2010 are (among others):
- Direct discrimination
- Indirect discrimination
- Failure to make reasonable adjustments
- Discrimination arising from disability
- Harassment (including sexual harassment)
Who can make a claim for discrimination in the Employment Tribunal?
Not everyone can make a claim for discrimination in the Employment Tribunal – to do so a person must have been “employed” (in a very loose sense, legally) by their employer. The following categories of “workers” can make a claim for discrimination in the Employment Tribunal (among others):
- Applicants
- Apprentices
- Contractors
- Workers
- Employees
- Former employees
What categories of “workers” can’t make a claim for discrimination?
Until recently, there was some degree of confusion as to whether volunteers could make a claim for discrimination in the Employment Tribunal due to an argument as to the wording of the Equality Act 2010. However, the recent Supreme Court case of X v Mid Sussex Citizens Advice Bureau has clarified the situation and brought a degree of certainty to the table. In X v Mid Sussex Citizens Advice Bureau a volunteer brought a claim for discrimination against her employer. The Supreme Court rejected this claim, stating that the Employment Tribunal did not have jurisdiction to entertain discrimination claims from volunteers.
What are the implications for employers of the recent Supreme Court decision?
Employers who are employing volunteers to undertake particular services can – within reason – now have a degree of certainty relating to whether they have an obligation to amend their services to comply with the needs of, for example, disabled volunteers – see this recent Employment Tribunal claim settled in the last few weeks. However, there may be circumstances under which an employer mistakenly believes that a person is a volunteer when in fact they are actually classified as a worker (and therefore able to claim discrimination). Such circumstances would include if the “volunteer” is paid a wage instead of just their expenses. Employers would therefore be advised to obtain employment law advice to avoid potential liability in such circumstances.
Redmans Solicitors are employment law solicitors based in the City of London and Richmond, London.
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