The Claimant was employed by the first Respondent, Highways England, from March 2018. In early 2019, Highways England entered into a contract for management consultancy services with the fourth Respondent, KPMG. It was intended that the Claimant would form part of a team of Highways England employees who would engage with KPMG in its performance of that contract. The Claimant subsequently presented claim forms to the ET in which she made complaints against KPMG of being subjected to detriments on the ground of having made protected disclosures (s47B ERA); direct sex discrimination (s13 EqA); and victimisation (s26 EqA). KPMG resisted all three claims on the basis that it had never been the Claimant’s employer. It requested a preliminary determination of that issue and also applied for the claims against it to be struck out on the basis they had no reasonable prospect of success. In the alternative, it sought a deposit order. The Claimant accepted that she had no express contract with KPMG, but submitted that she had an implied contract either of employment or as a worker. In relation to her whistleblowing claim she submitted that, in any event, KPMG was her employer under the extended definitions of “worker” and “employer” in s43K ERA. Alternatively, she submitted that, in its dealings with her, KPMG and / or KPMG’s employees acted as agents of Highways England such that KPMG was liable under s47B(1A)(b) ERA and ss109 and 110 EqA. Finally, she submitted that KPMG had instructed caused, induced or aided Highways England to commit basic contraventions against her such as to engage ss111 and 112 EqA. A preliminary hearing was fixed to determine the substantive issue of whether or not the Claimant had an implied contract with KPMG and to consider the applications for strike-out / deposit order. Having heard evidence on the substantive issue, the ET concluded that the Claimant had failed to establish the existence of any implied contract between her and KPMG. It struck out her complaints against KPMG under s47B ERA and 13, 26 and 112 EqA on the basis that they had no reasonable prospect of success. The ET’s reasons referred to the s111 complaint, but no reference was made in its judgment to the complaint under that section. The Claimant appealed.

The EAT allowed the appeal. The ET was correct to conclude that the Claimant had failed to establish any implied contract between her and KPMG. It had erred, however, in striking out her complaints under s47B ERA and sections 13 and 26 and 112 EqA. KPMG could potentially be liable under those sections without having any direct contractual relationship with the Claimant. Potential grounds for such liability included the argument that KPMG was acting at the material time as an agent of Highways England and, in respect of the s47B ERA complaint, that KPMG fell within the extended definition of “employer” in s43K ERA. The s112 complaint might also be established on the basis that KPMG had “knowingly helped” Highways England to commit a basic contravention against the Claimant. All of these issues were fact sensitive and could not properly be determined in the context of an application for strike-out. The ET should, however, have struck out the complaint under s111 EqA having regard to the terms of s111(7) EqA.