CVS Solicitors LLP v Van Der Borgh

For discrimination legislation defining employment to include a contract personally to do work, the dominant purpose of the contract is not the sole test. The tribunal must examine the substance of the whole relationship. The central question is whether the person performs services for and under the direction of the recipient in return for remuneration, or is a genuinely independent provider of services outside a relationship of subordination.

A tribunal must give sufficient reasons for its conclusion on that issue. A finding that personal work was contractually required does not, without explained findings on subordination or independence, adequately resolve employment status. Where the reasons are deficient, remission to the same tribunal may be proportionate if it can reconsider the issue professionally.

A former partner of a solicitors’ firm became a consultant under an agreement which gave him freedom over the amount of fee-earning work but required him to introduce new business and maintain client relationships. The Employment Tribunal held that he was an employee for claims of age and religion or belief discrimination.

The firm appealed. Following the hearing below, the Supreme Court decision in Hashwani v Jivraj [2011] ICR 1004 emphasised the distinction between employment and genuinely independent service provision. The principal issue was whether the Tribunal had applied and explained the correct approach to subordination and control.

1. Appeal allowed and case remitted. The Employment Tribunal’s reasons were insufficient to support its conclusion that the claimant was an employee for the relevant discrimination legislation.

2. The Supreme Court’s reasoning in Hashwani v Jivraj [2011] ICR 1004 changed the emphasis of the applicable approach. The dominant purpose of the agreement may remain relevant, but it cannot be the sole test. The tribunal must make a detailed assessment of the parties’ relationship and determine whether the individual performed services for and under the direction of the recipient for remuneration, or was an independent provider not in a relationship of subordination.

3. The Employment Judge found that the claimant had an obligation to introduce and maintain clients and personally to execute work. However, she did not explain whether she had accepted any withdrawal of the firm’s concession, or why those findings established subordination rather than independent service provision. The parties were therefore not told why the claimant had succeeded, contrary to the requirements identified in Meek v City of Birmingham District Council [1987] IRLR 250.

4. It was not open to the Appeal Tribunal to make the necessary findings itself. The matter was remitted to the same Employment Judge, who was to decide whether the concession had been withdrawn and, if so, whether its withdrawal was permitted, and then give reasons on subordination and independence. Remission to the same judge was proportionate and consistent with Sinclair Roche & Temperley v Heard [2004] IRLR 763.

• Employment Appeal Tribunal: Allowed the firm’s appeal and remitted the employment-status issue to the same Employment Judge.
• Employment Tribunal, London Central: Held that the claimant was an employee for claims under the Employment Equality (Age) Regulations 2006 and the Employment Equality (Religion or Belief) Regulations 2003.