Employment Case Study: Freelance personal trainer successfully establishes 'employee' status.
Lawson West Solicitors successfully established that a ‘freelance personal trainer’ for a UK wide gym franchise, had been a ‘worker’ in a claim under the Equality Act 2010.
The claim for disability discrimination arose from the Respondent’s termination of our Clients contract on the grounds of absence from work, which our Client says was caused by a medical condition amounting to a disability.
At a preliminary hearing, our Client was represented by Mr Stefan Liberadzki, the Barrister instructed by Lawson-West. The Tribunal held that our Client was a ‘worker’ within the meaning of section 83(2) of the Equality Act, and that our Clients claim could therefore proceed.
Workers are usually under more flexible and casual working arrangements, when compared to employees. Workers may work under different types of contracts, such as agency contracts or freelancing contracts. Whilst this distinction precludes workers from pursuing Unfair Dismissal and Constructive Unfair Dismissal cases in the Employment Tribunal, it does not prevent workers from pursuing Discrimination or Whistleblowing cases.
This definition has been interpreted by case law as being the same as that of a 'worker' under legislation such as the National Minimum Wage Act 1998 and the Working Time Regulations 1999. The basis of 'worker' status is whether the assumed employer is “a Client or customer of any profession or business undertaking carried on by the individual.”
The unusual feature in this case was that our Client received no payment from the employer. Instead, they earned income by approaching gym members and arranging with them to provide one-to-one training sessions.
Our Client would negotiate fees with gym members and take payment directly from them. The employer was not involved in these arrangements, except for setting a minimum fee for all personal trainers and requiring them to wear a particular uniform while training their clients.
In return for being given access to the employer’s members and facilities, our Client was required to attend the gym for shift work. During these shifts they were directed to tidy and clean equipment, give tours to new and prospective members, assist current members with queries, and deliver free group classes. The shift hours were set by management and remained consistent from week to week. Our Client was expected to arrange sessions with clients outside of those hours.
It was successfully argued that the absence of any payment from the employer to our Client did not prevent them from being a 'worker'. The Tribunal noted that our Client paid no rent or commission to the Respondent and had no real overheads. As such, much of the economic risk was in fact borne by the employer. The Tribunal further found that in our Clients shift work (which was essentially how our Client 'paid' for access to the employer’s facilities and members) they were subjected to a significant degree of control and became closely integrated into the business. Our Client was therefore found to have established 'worker' status.
Senior Associate Solicitor Sejal Patel, comments: “Despite receiving no payment from the employer, we successfully established our Clients ‘worker’ status. Due to the increasingly flexible nature of the UK labour market, cases about employment status have dominated the headlines in 2017 and therefore such cases have become less unusual than they once were.
At Lawson West Solicitors we are often faced with employers who are initially determined to hide behind a sham self-employed contract until we demonstrate and successfully prove our clients employee status.
If you have experienced problems with your contract of employment or your working conditions, please contact the Employment Team on 0116 212 1000. Contact Us
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