Tracey Merritt-Hughes v A24 Group — 2021

The claimant’s ET1 alleged disability discrimination by discrimination arising from disability, a failure to make reasonable adjustments, and a health and safety detriment under s.44 of the Employment Rights Act 1996. The preliminary hearing was listed to decide employment status. The tribunal heard evidence about the agency arrangement, the written contract terms, the claimant’s ability to accept or decline shifts, the limited substitution provision, and the extent of control exercised when she was placed at a care home.

Applying s.230 ERA 1996 and the authorities on the irreducible minimum of a contract of employment, the tribunal held that there was no contract of employment between the respondent and the claimant for ERA purposes. It found no mutuality of obligation because the claimant could refuse assignments and the respondent was under no obligation to offer work, and it would also have found insufficient control by the respondent over the claimant’s work once an assignment was accepted.

For Equality Act 2010 purposes, the tribunal considered the wider definition of employment and found that the claimant was contracted to perform work personally during each assignment. It accepted that the substitution power was limited but real, and not a sham. However, because the respondent conceded that the claimant was a worker within the meaning of the Equality Act 2010, that finding did not alter her Equality Act claims. The judgment did not determine liability on the discrimination or s.44 claims at this hearing.