R. (on the application of Notting Hill Genesis) v Camberwell Green Magistrates' Court  5 WLUK 124 Read more >
Tina Cook QC and Gemma Taylor QC were instructed in the recently reported decision of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings)  EWFC 30 (09 May 2019) Read more >
In EP v The Gym Ltd, the Claimant (referred to here as ‘EP’) was engaged by a nationwide chain of low-cost 24-hour gyms as a “freelance personal trainer”. His claim for disability discrimination arises from the Respondent’s termination of his contract on the grounds of absence from work, which he says was caused by a medical condition amounting to a disability.
At a preliminary hearing, in which EP was represented by Stefan Liberadzki, the Tribunal held that he was an “employee” within the meaning of section 83(2) of the Equality Act 2010, and that his claim could therefore proceed. 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 lynchpin of “worker” status is whether or not the putative employer is “a client or customer of any profession or business undertaking carried on by the individual”.
The unusual feature of EP’s case was that he received no payment from the Respondent. Instead, he earned income by approaching gym members and arranging with them to provide one-to-one training sessions. He would negotiate his fees with them and take payment directly from them. The Respondent had no involvement in these arrangements, save 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 Respondent’s members and facilities, EP was required to attend the gym for shift work. During these shifts he was 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. He was expected to arrange sessions with his own clients outside of those hours.
Stefan Liberadzki successfully argued that the absence of any payment from the Respondent to EP did not prevent him from being a “worker”. The Tribunal noted that he paid no rent or commission to the Respondent and had no real overheads of his own. As such, much of the economic risk was in fact borne by the Respondent. The Tribunal further found that in his shift work – which was essentially how he “paid” for access to the Respondent’s facilities and members – he was subject to a significant degree of control and was closely integrated into its business.
Comment: There are very few reported cases where individuals have established “worker” or “employee” status despite receiving no payment from the employer. Indeed, the Court of Appeal said in Quashie v Stringfellow Restaurants  EWCA Civ 1735 that it would be “an unusual case where a contract of service is found to exist when the worker takes the economic risk and is paid exclusively by third parties” (although this decision concerned “employee” status in the strict sense). In today’s flexible and casualised labour market, such cases may become less unusual than they once were.