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

For employment under a contract personally to do work within section 83(2)(a) of the Equality Act 2010, the absence of mutual obligations between separate assignments is irrelevant. It bears on whether there is a continuing contract of employment, but does not determine status during an accepted assignment.

The required inquiry is whether the individual provided personal services in a position of subordination and as part of the putative employer’s organisation, or instead supplied them to a client or customer in an independent business. Exclusivity is relevant but not decisive, and professional independence in performing the work does not itself preclude protected status.

Dr Windle and Mr Arada provided court and tribunal interpreting services to HMCTS under terms which gave no guarantee of work and imposed no obligation to accept offered assignments. Once an assignment was accepted, personal substitution was prohibited.

The Employment Tribunal held that each accepted assignment created a contract personally to do work, but found that neither claimant was employed under section 83(2) of the Equality Act 2010. It relied in part on the absence of mutuality of obligation between assignments.

Both claimants appealed. The central issue was whether that absence of mutuality was relevant to the distinct question whether they were employed under contracts personally to do work while carrying out assignments.

1. Appeals allowed and remitted. The Employment Tribunal erred in law by treating the absence of mutuality of obligation between assignments as relevant to the category (b) question under section 83(2)(a) of the Equality Act 2010.

2. A distinction must be maintained between employment under a contract of employment and employment under a contract personally to do work. Mutuality during gaps between engagements may be necessary to establish an overarching contract of employment. It is not required to fill those gaps for a person who, on an accepted assignment, is working under a contract personally to do work.

3. The Tribunal had correctly found that the claimants were not employed under contracts of employment. That conclusion did not resolve their separate category (b) status. The relevant inquiry concerns the contractual position during assignments.

4. On remittal, the Tribunal must consider all relevant circumstances, including whether the claimants performed services in a subordinate position, whether they were integrated into the HMCTS organisation, and whether HMCTS was merely a client or customer of an independent business undertaking. Lack of exclusivity is not decisive. Nor is the exercise of independent professional judgment fatal to category (b) status.

5. The anti-discrimination protection invoked should be construed purposively rather than restrictively. Since neither side established that the Employment Tribunal’s ultimate conclusion was plainly and unarguably correct or wrong, the appropriate course was remittal to the same Tribunal for reconsideration.

• Employment Appeal Tribunal: Appeals allowed. The cases were remitted to the same Employment Tribunal.
• Employment Tribunal, Leeds: Reserved judgment and reasons promulgated on 3 August 2013 following a pre-hearing review. It held that the claimants were not employees within section 83(2) of the Equality Act 2010.