For the purposes of a disability discrimination claim, the fact that an employee of an employment agency was not obliged to accept assignments offered did not prevent her from being employed under a "contract personally to do any work" when she accepted an assignment, thereby attracting protection under the Disability Discrimination Act 1995.
The appellant local authority appealed against a finding of an employment tribunal that the second respondent employment agency (R) had been the employer of the first respondent (P) within the definition in the Disability Discrimination Act 1995 s.68(1), that P had been a contract worker and that the local authority had been her "principal" within the meaning of s.4B(9) of the Act.
P had worked for the local authority as a "Senior School Travel Planning Officer" for roughly 10 months. Her case was that she was a disabled person and that she had been subjected to disability discrimination. She had been put forward for the post with the local authority by R. While she worked for the local authority, P was under contract to, and paid by, R. Her contract was described as a contract for services. It provided that she was not obliged to accept any assignment offered by R but that if she did she would have to comply with a number of obligations, such as co-operating with the client's reasonable instructions and accepting the direction, supervision and control of any responsible person in the client's organisation. The tribunal found that P's contract with R was a contract for services, not a contract of service, but that it was a contract under which P was personally to do work and therefore "employment" within the definition set out in s.68(1); P was therefore employed by R within the meaning of s.68(1). The local authority sought to challenge that finding, since a "principal" in s.4B(9) was defined as a person (X) who made work available for doing by individuals who were employed by another person who supplied them under a contract made with X.
The local authority argued that P had not been party to a contract "personally to do any work", since she was not bound to accept an assignment.
HELD: Once P accepted the assignment with the local authority, she owed express contractual duties to R which required her to do the work personally. That was sufficient to bring her within s.68. There was no warrant in the wording of the section for excluding her from it merely because she was not bound to accept the assignment. The arrangements under which P came to work for the local authority were common ones and Parliament had clearly intended the protection for contract workers to apply to such workers, Mingeley v Pennock (t/a Amber Cars)  EWCA Civ 328,  I.C.R. 727 distinguished; the contractual arrangements in Mingeley were altogether different from the arrangements in the instant case (see paras 18-19 of judgment).