Member L Grime Tribunal Member R Henderson Shauna Moar v C/o Hann & Co Represented by: Mr B Hann - Solicitor Dave Douglas — 2023

The tribunal's operative decision was that the claimant was not an employee under s.230 ERA 1996, was not a worker under s.230 ERA 1996 or s.83 Equality Act 2010, and did not fall within s.43K ERA 1996. It accepted the respondent's evidence that she was setting up her own personal training business at Future Gym, with the relationship governed by a Senior Personal Trainer Rental Agreement. The arrangement involved £540 monthly rent for use of the premises, £13 per hour only for agreed gym hours, invoicing by the claimant, freedom to attend competitions and holidays, and a contractual ability to use a substitute. On that basis, the tribunal dismissed the discrimination, whistleblowing and written particulars complaints for lack of jurisdiction.

The tribunal rejected the claimant's case that the August and October letters showed an employment relationship, finding they were produced to help with accommodation or benefits rather than to define status. It also found that the equipment clause meant the listed equipment became Future Gym's property in lieu of rent, and that the claimant signed and later amended the agreement without being rushed or pressured. The tribunal treated the rota and hours evidence as consistent with a flexible self-employed arrangement rather than guaranteed work.

Without making operative findings on the merits, the tribunal said it would likely have found that the claimant had hypothyroidism amounting to a disability under s.6 Equality Act 2010, but that the respondent probably only had actual or constructive knowledge from 2 or 3 November 2022 when the claimant linked the cold to a medical condition. On that basis, direct disability discrimination was not likely to succeed because there was no suitable comparator case and no sufficient evidence that the challenged treatment was because of disability.

The tribunal said harassment by mocking the claimant about being cold could likely have been made out, and that discrimination arising from disability and failure to make reasonable adjustments might have succeeded only in a short period after knowledge arose. It would likely have rejected victimisation because the heating complaints and the concerns about JM were not protected acts. The protected disclosure allegations also failed in the tribunal's alternative analysis: several of the matters alleged were not disclosures, or were not qualifying disclosures under s.43B ERA 1996, and the evidence did not show detriments because of whistleblowing. No monetary award was made.