CVS Solicitors LLP & Anor v Van Der Borgh

For the extended definition of employment in the discrimination Regulations, the decisive inquiry is whether the individual works personally for and under another’s direction for remuneration, rather than as an independent service provider outside a relationship of subordination. This is a broad, fact-sensitive inquiry.

There is no separate legal requirement to determine subordination independently of all other circumstances. Integration into the recipient’s business may be an important indicator, but it is not conclusive. The tribunal must assess the whole relationship, including personal service, remuneration, continuing obligations, facilities, integration and direction.

A retired equity partner became a consultant solicitor under a five-year agreement with a firm. He received a guaranteed annual payment and a share of fees. He continued fee-earning work, maintained client relationships and introduced business. The firm supplied office facilities and he could not provide a substitute.

He brought age and religion-or-belief discrimination claims under the Employment Equality (Age) Regulations 2006 and the Employment Equality (Religion or Belief) Regulations 2003. At a pre-hearing review, the Employment Judge held that he was within the extended definition of employee. Following an earlier EAT remittal for further reasons, the Judge reaffirmed that conclusion.

The firm appealed, contending that the Judge had wrongly treated integration as equivalent to subordination and had reached a perverse conclusion.

1. Appeal dismissed. The Employment Judge made no error of law in holding that the claimant fell within the alternative definition of employee in the Regulations: a person employed under a contract personally to do any work.

2. Following Jivraj v Hashwani, [2011] ICR 1004, the statutory wording distinguishes an independent provider of services, who is outside a relationship of subordination, from a person who performs services for and under another’s direction for remuneration. The inquiry is broad and depends upon a detailed assessment of the particular relationship.

3. The statutory definition is not displaced by judicial formulations such as integration or dominant purpose. Those formulations are useful indicators, not universal or prescriptive tests. The Employment Judge was therefore entitled to consider integration alongside all the other circumstances when deciding whether the claimant was subordinate to the firm. It would have been wrong to isolate subordination from that factual assessment.

4. Integration alone does not compel a finding of subordination. Here, however, the Employment Judge relied on further findings: personal performance, reciprocal remuneration, a continuing obligation concerning clients and new business, the firm’s provision of working facilities, and the claimant’s work within the firm’s policies and broad direction. Those findings supported the conclusion that he was not an independent contractor.

5. The perversity challenge also failed. The appellant had not provided the witness statements or notes of evidence needed to sustain its contention that the finding of broad direction contradicted the evidence. In any event, the firm’s own asserted contractual expectations supported the Employment Judge’s conclusion. The high threshold for perversity, explained in Yeboah v Crofton, [2002] IRLR 634, was not met.

• Employment Appeal Tribunal: Appeal dismissed in [2013] UKEAT 0009_13_2607.

• Employment Appeal Tribunal: An earlier appeal succeeded to the limited extent that the matter was remitted to the same Employment Judge for further reasons on the relevance of subordination following Jivraj v Hashwani.

• Employment Tribunal: At a pre-hearing review, and again in further reasons sent on 27 June 2012, the Employment Judge held that the claimant was within the extended employee definitions in the Employment Equality (Age) Regulations 2006 and the Employment Equality (Religion or Belief) Regulations 2003.