Self employed/Discrimination

[ElaineMBenes]

Posting for a friend ....

My friend is a self employed personal trainer and she has a corporate client. She is paid by a business to deliver fitness classes and PT sessions to their staff. She's been doing this for 18 months.
No formal contract but it has all been arranged over email as an ongoing arrangement and she invoices the company monthly.

She received an email last week saying that although they love her sessions they will not be continuing with the arrangement after Christmas. She responded asking is there was any particular reason or feedback she should take into account as she was under the impression everyone was happy.
They responded saying that there was no negative feedback but they've decided to try someone new and they specifically want a male personal trainer! All in an email!!

They've essentially told her that they are not continuing with her simply because she's female.

Any employment law experts out there? Is it worth her speaking to a solicitor about this?
They were her biggest corporate client and accounted for half her income.

Yes. The sex of a self employed person is a protected characteristic. She does have a contract with this company as she has delivered a service and they have paid her. Not all contracts have to be written. She’s not protected from the company deciding not to use her any more but the reason given appears to be illegal. Whether she wants to throw money at this is another matter.

Thank you. This helpful.

I can't believe they were daft enough to put it in an email!

Whilst I agree its a protectef characteristic, she's not employed so employment law is not relevant here as presumably she invoices from her company not as an individual?

If the company have given adequate notice then I am not sure she can do much. If the company have had a request from employees to provide a different trainer then the company are entitled to change the service requested. So she won't achieve much IMHO

Whilst I agree its a protectef characteristic, she's not employed so employment law is not relevant here as presumably she invoices from her company not as an individual?

Everything I've read suggests that she is protected by law even if she is self employed?

If the company have given adequate notice then I am not sure she can do much. If the company have had a request from employees to provide a different trainer then the company are entitled to change the service requested. So she won't achieve much IMHO

If they had just decided to try an new trainer based on feedback then I'd agree with you but she specifically asked if there was any negative feedback and was told that no, everyone was happy with her sessions.

If they'd just said they wanted to try someone new then that wouldn't be a issue either.

However, they have specifically said they are terminating her sessions because she's female. Even if that is the case, don't put it in a bloody email!

Can this be seen as an occupational requirement exemption? Are all the participants male for example. I'd say a Personal Trainer was a bit of a grey area and depends on whether close contact etc is required.

I wondered that but no, classes are mixed and offered on a departmental basis. So the demographic of particular departments will determine the make up of the class but there are no single sex classes. Some classes are predominantly female and others are predominantly male but all are mixed.

It's an employee perk and none of them pay for it themselves. Perhaps some of the male employees have said they would prefer a male instructor - but that hasn't been fed back directly.

Self employed people are protected by law but only if the company is breaking the law. If they've commissioned a service and the service users have requested a different trainer then that is not illegal. If they want to compare female and male trainers to see which lands better with employees that is also not illegal.
The feedback is not necessarily negative but if some people have requested a different trainer and the company can't afford to run 2 trainers then it could be they are just testing the waters. Either way, even if she's right, what does she gain by taking them to court.
The company can just say OK here's some cash to compensate you for discrimination but it wouldn't amount to more than a reasonable notice period. Which they have given. They don't need any reason to cancel the arrangemenr with her. They can just decide they don't want to work with her any more and serve notice. There's no contract on this anyway!

This may be a good lesson for her around the importance of having a contract !

A contract is formed when money is paid for a service. Even in employment law, there can be a contract with no written terms. Good practice to have a contract of course but contracts can be formed without anything being written down. It’s fairly basic contract law.

Yes, the company can decide it no longer wants the service. The reason given is discriminatory. They could have said nothing. Whether I would pursue this? No. Probably not. No way back in if she does.

Yes but then she can't come back and complain about terms eg length of notice etc. As if it's not written down she has nothing specific to rely on just what's considered normal industry practice.
And I'd say that over a month's notice is fairly standard.

We are not talking about length of notice are we? We are talking about if a female self employed service provider can have the contract cancelled because they now want a man.

Exactly. She's not complaining about the terms and conditions or the length of notice.
It's the fact they've said they're replacing her with a male instructor despite having had nothing put positive feedback.

@ElaineMBenes It will depend on what a solicitor says but how much money will she throw at it? Bridges burned if she gets into discussions with them. If she’s great, there’s still business out there. She has the issue that they can terminate her sessions but not for the reason given. Heavens knows why anyone said that! They could just say they aren’t continuing to use her.

IANAL but I don't think she has recourse. She's self employed, they have given her notice within the terms of the contract. If they had ended it early in favour of a man that might have been different.

What does she want to achieve by pursuing the matter? I appreciate she might be pissed off but what will she achieve if she challenges them?

Heavens knows why anyone said that! They could just say they aren’t continuing to use her.

I know! Really stupid to put it in an email.

There were a dozen other reasons they could have given - or none at all!

What does she want to achieve by pursuing the matter? I appreciate she might be pissed off but what will she achieve if she challenges them?

I guess that's what she needs to decide.

They're her biggest corporate client and they're a well known company/brand. She was able to use the fact she worked with them in her marketing to attract other corporate customers. It shame she's lost that just because she's female!

She still did work for them. Write it up slightly differently. Also other corporates might love her!

Also with no written agreement, no contract has been ended early. The issue is that they want a man. The reasons for this don’t matter. Self employed or employed, a woman being got rid of because she’s a woman, I think, is not legal. The next question is whether to take it further and weigh up the cost - financial and outcomes. What outcome would she want?

She does have recourse, at least potentially.

In the Maya Forstater case, her contract was not renewed due to her views on gender, as a result of which she won damages of £105k (including interest) due to direct discrimination. In the same way, failure to renew OP's friend's contract because they want a man could be direct discrimination on the information posted.

If OP thinks this client may come back, she will need to consider what she wants to do carefully. However, if the client isn't coming back and she takes them to tribunal, she could get loss of earnings for however long it is likely to take her to replace the lost income plus an award for injuries to her feelings.

If she wants to take this further, her next step should be to consult a lawyer who specialises in employment law. They will be able to advise if she has a case.

I'll defer to your better expertise @prh47bridge but in Forstater she was not contracted on a self-employed basis and there was plenty of evidence that they had intended to extend her contract but for her views.

This PT is essentially a supplier of a service to the company rather than an employee, or at least that's my take.

She can still use the fact that she worked with this corporate in her marketing

i I think she needs to be careful, rightly or wrongly, about other corporates finding out that she took any claim further as this may mean people won’t use her

i do think she needs to be very clear what she wants to achieve by pursuing this, how much she is willing to spend to defend it and understand that it is very unlikely to happen quickly

Also with no written agreement, no contract has been ended early.

Untrue. The piece of paper is not the contract, merely the written record of the contract.

Yes I agree with this and ultimately they've given her reasonable notice (over a month) and whilst she'd get something for injury to feelings it won't be a lot I'd say. As supplier of a service they don't owe her an ongoing contract ad infinitum. Even if they were ordered to reinstate her they could simply terminate her contract the next day for an alternative reason

Forstater was self-employed fpr most purposes. She was able to work for other organisations, was responsible for her own tax and NI, and was under a fixed duration contract. She had no line manager, was not the subject of any appraisal, was not required to work any particular hours or days and could negotiate her own pay rate. CGD repeatedly said they were going to take her on as an employee but never did so.

The Equality Act says that employment means, "employment under a contract of employment, a contract of apprenticeship or a contract personally to do work". In Forstater's case, the tribunal decided she was under a contract personally to do work. The same may also apply to OP's friend.

Just because someone is self employed and providing a service does not mean they are not subject to sex discrimination laws. I posted details of this earlier.

If you don’t have an agreed contract, it’s difficult to say what a notice period is. In this case, though, there is no dispute about that. There is a contract because she’s done the work and been paid but the company can just say “no thanks” with immediate effect if there’s no other agreement in place, written or otherwise.