CVS Solicitors LLP & Anor v Van Der Borgh (Religion or Belief Discrimination)

For the extended definition of employment in the discrimination Regulations, the decisive inquiry is whether the individual performs personal services for and under another’s direction in return for remuneration, or instead operates as an independent provider without a relationship of subordination.

This is a broad, fact-sensitive assessment of the whole relationship. Integration into the recipient’s business may be an important indicator of subordination, but it is neither a universal test nor a conclusive one. A tribunal must not isolate subordination from the surrounding circumstances. A perversity appeal faces a high hurdle and will fail where the tribunal’s conclusion was open on its findings.

The claimant was a former equity partner who became a consultant solicitor under an agreement with the respondent firm. He brought claims of age and religion or belief discrimination under the Employment Equality (Age) Regulations 2006 and the Employment Equality (Religion or Belief) Regulations 2003.

An Employment Judge held that he was employed under a contract personally to do work for the purposes of those Regulations. Following an earlier successful appeal, HHJ Serota QC remitted the case to the same Employment Judge for further reasons on the effect of Jivraj v Hashwani. The Judge again held that the claimant was within the extended definition.

The respondents appealed, contending that the Judge had wrongly treated integration as subordination and that the conclusion was perverse.

1. Appeal dismissed. The Employment Judge made no error of law in holding that the claimant fell within the extended definition of employee in Regulation 2(3) of the Employment Equality (Religion or Belief) Regulations 2003 and Regulation 2(2) of the Employment Equality (Age) Regulations 2006.
2. The applicable distinction, derived from Jivraj v Hashwani [2011] ICR 1004 and European authority, is between an independent provider of services who is not subordinate to the recipient and a person who performs services for and under another’s direction for remuneration. It requires a detailed, fact-sensitive consideration of the parties’ relationship.
3. The statutory words remain controlling. Authorities provide guidance and do not impose a separate, prescriptive inquiry into subordination detached from all the circumstances. Integration into the firm was relevant to whether the claimant was subordinate. Its weight was fact-sensitive. It would have been erroneous to consider subordination without considering integration and the other features of the relationship.
4. The Employment Judge did not infer subordination from integration alone. She was entitled to rely also on the claimant’s personal performance of work, continuing obligation concerning clients and new business, remuneration, use of the firm’s facilities, and the finding that he worked under the firm’s broad direction. Those findings supported the conclusion that he was not an independent contractor.
5. The perversity challenge failed. The respondents had not provided the witness statements or notes of evidence needed to sustain their assertion that the finding of broad direction was contrary to the evidence. In any event, the findings showed that the firm itself considered the claimant subject to such direction. The high threshold for perversity was not met.

• Employment Appeal Tribunal: Mrs Justice Slade dismissed the respondents’ appeal: [2013] UKEAT 0009_13_KN_2607.
• Employment Appeal Tribunal: HHJ Serota QC allowed an earlier appeal and remitted the matter to the same Employment Judge to give further reasons concerning the effect of Jivraj v Hashwani.
• Employment Tribunal: The Employment Judge’s first judgment of 9 August 2011, and further reasons sent on 27 June 2012, held that the claimant was within the extended definition of employee for the discrimination claims.