Transgender Contractor Transgender Contractor - Page 5
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  1. #41

    Some things in Moderation

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    I have deleted some posts as they are not about Business/Contracts.

    If you want to continue in that vein, do it in General.

  2. #42

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    Quote Originally Posted by Old Greg View Post
    IIRC there was a discrimination case that was lost as the contractor had the RoS so it wasn't a contract for personal service. Will look it up, and things may have moved on.
    Employment status and the Equality Act 2010 - Personnel Today

    Possibly there's more recent case law.

    In some industry sectors, it is common for workers to contract for work through a limited liability company. A recent case in the Employment Appeal Tribunal (EAT) explores whether such workers are protected against discrimination under the Equality Act 2010 and suggests that in some cases they may not be. Jo Broadbent and Matthew Towers of Hogan Lovells explain.Halawi v WDFG UK Ltd

    Under s.83 of the Equality Act 2010, an individual is protected against discrimination if they can show that they are in “employment” under a contract of employment, a contract of apprenticeship or a contract to personally do work. In Halawi v WDFG UK Ltd, the EAT was asked to decide whether or not an individual who provided her services through a limited liability company was “in employment”. In a decision that could have implications for other workers who contract via a limited liability company, the EAT decided that she could not.
    The claimant worked airside at an airport. She set up a limited liability company that contracted with management agency CSA, which in turn provided her services to a cosmetics company in premises that were managed by World Duty Free. World Duty Free was responsible for arranging the claimant’s airside pass. When it withdrew the claimant’s pass, she brought discrimination claims against World Duty Free and CSA.
    “A contract personally to do work”

    It was accepted that the claimant was not employed under a contract of employment or an apprenticeship. She therefore needed to show that she was employed under “a contract personally to do work”. The tribunal decided that the claimant could not show that she had a contractual relationship with CSA, because her contract with it was through her company and not with her as an individual. There was no contractual relationship at all between the claimant or her limited liability company and World Duty Free. On that basis, the claimant could not point to the existence of a contract as required by the Equality Act.
    In addition, the claimant could change or withdraw from her shifts, or send a substitute to work in her place, and had exercised that right. She had no entitlement to sick pay or holiday pay. This meant that even if she could point to a contractual relationship, it was not one under which she was obliged to perform services personally and her claim could not proceed.
    Relationships of dependency and subordination

    Before the EAT, the claimant argued that developments in European law meant that s.83 of the Equality Act should be viewed more broadly. Here, the contractual arrangements disguised what was essentially an employment relationship – the claimant was in a position of subordination and economic dependency. The EAT was urged to look beyond the requirements of s.83 for both a contract and personal service and accept that someone like the claimant should be protected against discrimination as a matter of EU law.
    Having reviewed the EU decisions relied upon by the claimant and the subsequent Supreme Court decision in Hashwani v Jivraj, the EAT rejected the claimant’s argument. EU law did not extinguish the requirement either for a contract or for personal service. Even if the claimant was correct that someone in a relationship of dependency and subordination should be protected, on the facts of the case she still could not succeed, given the limited control exercised by the respondents over her work.
    In reaching this conclusion, the EAT was clearly concerned that the structure of the arrangements removed protection against discrimination from someone an “ordinary person” would probably have regarded as an employee. Despite that, it found that the underlying legal test needed to be met in order for the Equality Act to apply.
    Use of personal service companies

    This decision reminds us that in order for workers to be “in employment” under the Act there needs to be a contract between the “employer” and the individual, and the individual must be under an obligation to perform work personally.
    So can employers now assume that they can avoid challenges under the Equality Act by requiring workers to contract through a personal services company? Two factors of particular relevance in the Halawi decision suggest not.
    First, it was not clear what the motivations of the different parties were for entering into the arrangements that they did. Second, once the claimant had exercised the right to send a substitute to work in her place, she was always going to struggle with the personal service requirement.
    It would not be surprising if a different conclusion were reached in a future case, should an “employer” have forced a worker to contract through a limited liability company and the personal service requirements were met.
    This article was originally published on 4 February 2014. It was updated on 20 October 2015 by Fiona Cuming, employment law editor.


    Quote Originally Posted by Bean
    I admit that I'm a lazy lying cretin, but so what?
    25 June 2018

  3. #43

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    Quote Originally Posted by Old Greg View Post
    Ashers 'gay cake' row: Bakers win Supreme Court appeal - BBC News

    I point this one out as it was the discrimination act that was interpreted.
    And whilst the case was lost, it wasn't lost due to lack of employment (IMO this was a contract for service not an contract of service).
    It was lost for a different technical reason.

    ergo... if the act doesn't apply to contractors the bakers would have used that and saved some money and not had to go to appeal in the supreme court....

    IANAL.
    See You Next Tuesday

  4. #44

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    Quote Originally Posted by Lance View Post
    Ashers 'gay cake' row: Bakers win Supreme Court appeal - BBC News

    I point this one out as it was the discrimination act that was interpreted.
    And whilst the case was lost, it wasn't lost due to lack of employment (IMO this was a contract for service not an contract of service).
    It was lost for a different technical reason.

    ergo... if the act doesn't apply to contractors the bakers would have used that and saved some money and not had to go to appeal in the supreme court....

    IANAL.
    A little different, as you have to think in each case about who is buying the service and who is selling the service.

    You can't refuse to serve a Jewish customer in a shop, because they are Jewish (gay cake). You can refuse to buy from a shop because it is owned by someone Jewish (World Duty Free contractor).

    Anyway, OP, don't mean to detail.

    However, if you find an Inside IR35 role, my guess is that you have legal protection, as hard as that is to enforce.
    Quote Originally Posted by Bean
    I admit that I'm a lazy lying cretin, but so what?
    25 June 2018

  5. #45

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    Quote Originally Posted by BrilloPad View Post
    You have the support of most on here and in society.
    I'm not sure this sentiment is any more appropriate than the other. OP is presumably looking for professional advice, not support or sentiment. It would be nice, for once, if we could try to keep it to that.

  6. #46

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    Quote Originally Posted by Old Greg View Post
    A little different, as you have to think in each case about who is buying the service and who is selling the service.
    Precisely.
    Quote Originally Posted by Old Greg View Post
    However, if you find an Inside IR35 role, my guess is that you have legal protection, as hard as that is to enforce.
    It's impossible to enforce unless they are stupid enough to give the game away as to why they decided not to give you the contract, or as to why they are letting you go. Even inside contracts are going to reserve the right to show you the door without cause, so any legal protections are going to be impossible to enforce. They can just say, 'We didn't need the services anymore, and as per terms of the contract, we terminated it.'

    OP will need to find a contract where trans is accepted -- the legal protections can be useful for employees but they aren't worth a straw for contractors unless the client is an absolute idiot.

  7. #47

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    Quote Originally Posted by WordIsBond View Post
    the legal protections can be useful for employees but they aren't worth a straw for contractors unless the client is an absolute idiot.
    to be clear..... are you saying that the equality law is valid for contractors, but may not be helpful? That's what I think you're saying.
    See You Next Tuesday

  8. #48

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    Quote Originally Posted by Lance View Post
    to be clear..... are you saying that the equality law is valid for contractors, but may not be helpful? That's what I think you're saying.
    I'm not a lawyer but that accurately reflects what I think.

    I spent decades in management on the client side. The average client decision-maker probably doesn't know whether equality law is valid for contractors or not (as I don't) and will not want to take any risks of being caught on the wrong side of it. And therefore will be hesitant to take on a contractor that could put them in an equalities mess.

    So in fact, equalities law may be counter-productive for contractors, whether it applies or not, because it is so easy for clients to just get someone else, and get rid of someone, without giving a reason. So they'll do that. That's the cold, hard reality. Many will work with an employee who they see as a long-term asset/investment/relationship, but they are going to avoid potential hassles either from the contractor or within their own team if they can find someone equally as good who doesn't have this potential problem. It may not be fair and it may not be within the intent of equalities law but they can act within the letter of equalities law when it comes to contractors pretty easily.

    If you are from a protected group (under equalities law) you may find a lot of companies would take you as an employee but not as a contractor.

  9. #49

    More time posting than coding

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    Quote Originally Posted by WordIsBond View Post
    ...If you are from a protected group (under equalities law) you may find a lot of companies would take you as an employee but not as a contractor.
    Something worth noting in the context of this thread: transgenerism is NOT a protected characteristic under the Equality Act 2010. Transexuality IS, but that is different and should not be confused.
    Last edited by wattaj; 10th October 2019 at 14:24.
    ---

    Former member of IPSE.

  10. #50

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    Quote Originally Posted by wattaj View Post
    Something worth noting in the context of this thread: transgenerism is NOT a protected characteristic under the Equality Act 2010. Transexuality IS, but that is different and should not be confused.
    Unlike you, who are confused.

    Gender reassignment discrimination | Equality and Human Rights Commission

    What the Equality Act says about gender reassignment discriminationThe Equality Act 2010 says that you must not be discriminated against because you are transsexual, when your gender identity is different from the gender assigned to you when you were born. For example:

    • a person who was born female decides to spend the rest of his life as a man

    In the Equality Act it is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.
    To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one.
    You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.
    The Equality Act says that you must not be discriminated against because:

    • of your gender reassignment as a transsexual. You may prefer the description transgender person or trans male or female. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so. For example, a group of men on a stag do who put on fancy dress as women are turned away from a restaurant. They are not transsexual so not protected from discrimination
    • someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant (this is known as discrimination by perception)
    • you are connected to a transsexual person, or someone wrongly thought to be transsexual (this is known as discrimination by association)



    Quote Originally Posted by Bean
    I admit that I'm a lazy lying cretin, but so what?
    25 June 2018

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