Can an LLP member be a worker?

Yes, says the EAT (HHJ Peter Clark) in Van Winkelhof v Clyde & Co LLP reversing an employment tribunal's decision that it did not have jurisdiction to consider the Claimant's complaint of detriment for making a protected disclosure as it was not satisfied she was a 'worker' within the definition of section 230(3) of the ERA.

The Claimant complained that she had been subjected to sex discrimination as a result of announcing her pregnancy and being expelled from the Respondent's partnership and that she was subjected to a detriment for making a protected disclosure, namely that she was disciplined and expelled as a member of the partnership. The employment tribunal found that the Claimant was entitled to bring her sex discrimination claim under the Equality Act 2010 but that as a member of an LLP it was not satisfied she was a 'worker' and therefore she could not pursue a whistleblowing claim. The Claimant appealed.

The EAT accepted that the formulation of the four statutory requirements under section 230(3)(b) for a worker were:

• there must be a contract (in this case the LLP agreement with Clyde & Co),
• under the contract the worker must undertake to do or perform work or services personally,
• the work or services are to be done or performed for another party to the contract, and
• the other party must not be a client or customer of a profession or business undertaking carried on by the putative worker (referred to as the 'exclusion proviso').

HHJ Peter Clark commented that it was 'plain and obvious' that the exclusion proviso did not apply to the Claimant. The Respondent was not the Claimant's client.

Is a lap dancer an employee?

Yes, says the EAT (HHJ McMullen QC) in Quashie v Stringfellows Restaurants Limited reversing an employment tribunal's decision dismissing an Unfair Dismissal claim on the grounds that the lap dancer Claimant was not an employee.

The Claimant worked under a standard contract, the relationship was generally understood in the industry to be one of self-employment. The Claimant worked on a rota; she was entitled to work when on the rota; and was paid by the Respondent for the 'Heavenly Money' vouchers (a money substitute) that she received from clients, subject to agreed deductions.

In a fact-specific Judgment, the EAT held that on a proper construction of the employment tribunal's findings, the Claimant was an employee. The Respondent had the right to control the Claimant's activities when she was at work. Even though the Claimant worked under an 'umbrella contract' covering each separate engagement, the relationship gave rise to an expectation of continued engagement, hence there was sufficient mutuality of obligation for employment status.

The EAT remitted the case to consider the Unfair Dismissal complaint and permitted a tax-related illegality defence raised by the Respondent to be considered.

The Supreme Court has held in Seldon v Clarkson Wright and Jakes (a Partnership) that the test for justifying direct age discrimination is different and narrower than the general test for justifying indirect discrimination.

The case concerned a partner from the Respondent firm of solicitors who was forced to retire when he turned 65. The Supreme Court held that the compulsory retirement age contained in the firm's deed of partnership was a directly discriminatory measure but that it was capable of justification as it was founded on legitimate social policy aims - summed up as 'inter-generational fairness' and 'dignity'. However, the case was remitted back to the employment tribunal for consideration of whether the selection of the specific age of 65 was a proportionate means of achieving those aims in the circumstances of the particular business.

The test for justifying direct age discrimination, as now clarified, is that employers must show:

• They have an aim;
• That aim is potentially legitimate in that it is capable of being a 'public interest' aim as specified in the Framework Directive (2000/78/EC) [59]. Those 'public interest' aims are distinguishable from purely individual aims particular to the business, such as cost reduction or improving competitiveness;
• The aim is also legitimate in the particular circumstances of the case [58] & [61]. A potentially legitimate aim within the Directive may not be so for the particular business concerned. This is explained by the examples given in [61]: so, avoiding the need for performance management is an aim directly connected with the 'public interest' aim relating to 'dignity' but if, in fact, the business already has sophisticated performance management procedures in place, it may not be legitimate to disapply them for one section of the workforce. This requires particular scrutiny of the aim in the context of the individual business to see if it is legitimate for that employment;

The means chosen to achieve the aim must be both appropriate and necessary. In Homer v Chief Constable of West Yorkshire Police, the SC emphasises that proportionality must be approached by considering both these aspects separately. This will involve considering whether there are other, less discriminatory, measures which would achieve the aim. This test represents a narrowing of the circumstances in which an employer can justify direct discrimination.

Before making a costs order, should an Employment Tribunal raise the issue of the potential paying party's ability to pay costs, even if the issue is not raised by or on behalf of that party?

Yes, in some circumstances, says the EAT in Doyle v North West London Hospitals NHS Trust.

Under Rule 41(2) of the Employment Tribunal Rules of Procedure, when considering whether to award costs or the amount of such costs, an employment tribunal 'may have regard to the paying party's ability to pay'.

Following dismissing the Claimant's claims, the employment tribunal made an order that the Claimant should pay the entirety of the Respondent's costs, which were very substantial and then estimated at around £60,000. The Tribunal had not considered the Claimant's ability to pay when reaching this decision, nor had the issue been raised by the Claimant's legal representative.

The EAT concluded that the tribunal had not erred in deciding to award costs. However, in the particular circumstances of the case, which included a potentially very large costs award and nothing to indicate that the Claimant could pay such an award, the EAT concluded that the tribunal had erred in law by not raising the issue of ability to pay before deciding on the costs application.

The EAT commented that tribunals should always be cautious before making a very large costs award, given the very serious potential consequences to a Claimant of such an order and because such orders may act as a disincentive to those bringing legitimate claims.

The EAT referred the case back to the same employment tribunal to make reasonable enquiries into the Claimant's means, to decide whether to take into account the Claimant's ability to pay, and if so, to consider the appropriate costs order having regard to the Claimant's ability to pay.