Windle v Arada & Anor (Jurisdictional Points : Worker, employee or neither)

For the extended discrimination definition of employment, a person engaged under a contract personally to do work need not establish mutual obligations between separate assignments. That consideration concerns whether there is a continuing contract of employment, not whether an accepted assignment falls within category (b) of section 83(2) of the Equality Act 2010.

The correct inquiry is fact-sensitive. The tribunal must consider whether, while performing the work, the individual was in a subordinate position and integrated into the putative employer’s organisation, or instead supplied services to it as a client or customer in an independent business. Lack of exclusivity and the exercise of professional judgment are relevant but not decisive.

Two freelance interpreters brought race discrimination claims against the Secretary of State for Justice arising from interpreting services supplied to HMCTS. The Employment Tribunal accepted that each accepted assignment was a contract requiring personal service, but held that the interpreters were not employees within section 83(2) of the Equality Act 2010. It relied in part on the absence of mutual obligations between assignments.

Both claimants appealed. The central issue was whether that absence was relevant when deciding whether an individual was employed under a contract personally to do work, as distinct from a contract of employment.

1. Appeals allowed. The Employment Tribunal erred in treating the absence of mutual obligations between assignments as relevant to the category (b) question under section 83(2)(a) of the Equality Act 2010.

2. A contract is required for both ordinary employee and extended worker-type statutory status. Mutual obligations may be material to whether there is a continuing contract of employment, including across gaps between engagements. They are not, however, relevant to the separate question whether an accepted assignment under which personal service is required is a contract personally to do work.

3. The Tribunal had correctly found that the claimants were not employed under contracts of employment. Its category (b) conclusion could not stand because it had taken an irrelevant factor into account.

4. On reconsideration, the Tribunal must assess the relationship while services were supplied. It must consider whether the claimants worked in a position of subordination, whether they were integrated into HMCTS, and whether HMCTS was instead their client or customer in an independent business undertaking. The lack of an exclusive arrangement is not determinative. Nor does the exercise of independent professional judgment preclude category (b) status.

5. The discrimination protection must be approached purposively rather than restrictively. The case was remitted to the same Employment Tribunal for reconsideration in accordance with the EAT’s guidance.

• Employment Appeal Tribunal: allowed the claimants’ appeals and remitted the category (b) status issue to the same Employment Tribunal.
• Employment Tribunal: in reserved reasons promulgated on 3 August 2013, held that the claimants were not employed under a contract of employment or under a contract personally to do work for the purposes of section 83(2) of the Equality Act 2010.