Miss M Girvan v Tracy Marshall and 1 other — 2019

Miss M Girvan presented claims in June 2018 including automatically unfair dismissal and disability discrimination. After The Badass Agency Limited was dissolved on 18 December 2018, she withdrew the claims against that company, including the automatically unfair dismissal claim, and the preliminary hearing proceeded only against Ms Marshall and Mr Camp on the Equality Act claims.

The issue was whether Ms Girvan was in 'employment' for the purposes of section 83(2) Equality Act 2010. The tribunal heard that the Badass venture was run by three directors/shareholders, with no written contract, no set hours, no salary, no PAYE registration, no disciplinary or grievance procedure, and no obligation on the company to provide work or on Ms Girvan to do it. It found no mutuality of obligation, no contract of employment, and no contract personally to do work.

The tribunal also found that Ms Girvan chose whether, when and how she worked, and that no one in the agency gave her instructions. Referring to authorities including Fleming, Bottrill, Allonby, Jivraj and Windle, it concluded that she was the driving force behind the venture but was not an employee for Equality Act purposes. As a result, the tribunal held that it had no jurisdiction to determine the disability discrimination claim and did not need to decide the separate issues of disability status or the respondents' knowledge.