Ms Nicola Docherty v The Scottish Ministers — 2018

The claimant brought a pregnancy discrimination complaint against the Scottish Ministers under section 41 of the Equality Act 2010, asserting that she was a contract worker supplied through her company, Pink Lotus Limited, via Parity Professionals Limited. The preliminary issue was whether the Tribunal had jurisdiction, which depended on whether the claimant was employed by Pink or another person for the purposes of sections 41 and 83(2) of the Equality Act 2010.

The Tribunal found that the claimant was the sole director and shareholder of Pink, that there was no written employment contract, written statement of employment particulars, memorandum, or minutes recording a contract between her and Pink, and that she made Pink's decisions. It found that any control over her work came from the respondent rather than Pink, that Pink was not obliged to provide her with work, and that her ability and intention to provide a substitute pointed away from a requirement for personal service.

The Tribunal treated payslips and PAYE payments as neutral and placed weight on evidence that the claimant chose how much of her earnings were paid that way, with no evidence of holiday pay, sick pay, statutory sick pay, maternity pay, or records of absences. Looking at the evidence as a whole, it concluded that there was no contract of employment or contract personally to do work between the claimant and Pink, and no evidence that she was employed by anyone else for the purposes of section 41. The Tribunal therefore held that it lacked jurisdiction under section 120 and dismissed the claim.