L Whitton v UK Power Networks (Operations) Ltd — 2022

At this preliminary hearing, L Whitton pursued an age discrimination claim against UK Power Networks (Services) Ltd and the tribunal first determined whether it had jurisdiction under the Equality Act 2010. The respondent argued that he was neither an employee nor a contract worker and also sought strike out and/or a deposit order. The tribunal continued with the hearing in the interests of justice, heard oral evidence from the claimant, and noted that the age discrimination allegations themselves were not being decided at this stage.

On the facts, the tribunal found that the claimant had been recruited directly by the respondent in 2015, worked as an electrician for just over five years, usually about 40 hours a week, and was moved between projects by the respondent. Although payment was routed through Matchtech and later through a limited company the claimant was told to set up, the claimant did not sign the consultancy agreement, there was no genuine relationship between him and Matchtech, and there was no arrangement for substitution. The tribunal accepted his evidence that his day-to-day direction and control came from the respondent and that if he had not attended work he would have been sacked.

Applying the statutory definitions and the authorities cited, including Autoclenz, Uber, Pimlico Plumbers, James and Camden v Pegg, the tribunal held that there was an implied contract personally to do work between the claimant and the respondent, so he fell within section 83(2)(a) of the Equality Act 2010 and was not a contract worker under section 41. It therefore held that the respondent's strike out and deposit applications should be refused; taking the claimant's case at its highest, the age discrimination claim had a reasonable prospect of success and the factual dispute should be tested at a final merits hearing.