Discrimination and the Self-Employed: The Scope of Protection in an Interconnected Age

Summary

INTRODUCTION

Nestled away in the panoply of EU equality legislation lies one directive which is little known and little loved. This is Directive 2010/41 on equal treatment for the self-employed. Its predecessor, Directive 86/613, was equally neglected. The very concept of employment rights for the self-employed is already an oxymoron. Why should the self-employed, a group seen as independent and autonomous, need or deserve employment protection? Surely the customers ‘right to choose their supplier is the paradigm of contractual autonomy and the law should not interfere with their decision-making?

Yet, as labour lawyers well know, those who describe themselves as self employed often manifest many of the characteristics of employees – they may in practice be dependent, have inferior bargaining power and they risk exploitation. Even those who do not match this description still need to have access to the labour market: there is no point in being'self- ‘without being ‘employed’. As section 2 shows, the numbers of self-employed are increasing, and women feature prominently in that group. Moreover, with the rise of new forms of working, including via online platforms like Airbnb, it is likely that the number of self-employed will carry on increasing. But empirical evidence shows that these online platforms tend to favour white men. This directly speaks to the concerns of equality law. So, at first sight, a directive giving protection against discrimination to the self-employed makes a lot of sense.

However, one of the most vexed issues in equality law is scope: who can rely on discrimination law and who is subject to it? Section 3 considers the personal scope of the existing EU equality directives and the duty holders under those directives. This examination of the scope of the existing directives reveals a lacuna: at present the self-employed can be the subject of the equal treatment principle but may be able to invoke it only in vertical situations, i.e. against the state. They cannot invoke it horizontally in private contexts, for example where a female plumber is not selected by a potential client from a website where she offers her services.