Chet v Capita Translation And Interpreting Ltd

An appellate tribunal will permit a new point of law to be raised only in exceptional circumstances. The discretion is not engaged merely because the point may be good. It requires regard to finality, whether all necessary facts are available, whether further factual inquiry or amendment would be required, and the justice of allowing a party to advance a different case after failing below.

Whether an individual is a worker, and whether an intermediary is the professional’s client, are ordinarily questions of fact assessed by reference to the whole relationship. An intermediary which contracts for a professional’s services may be found to be the professional’s client, even though end-users receive the practical benefit of those services.

The Claimant, a Romanian interpreter, supplied interpreting services through ALS and later the Respondent, Capita. She had no direct contract with the police forces or courts for whom assignments were performed. She claimed holiday pay under the Working Time Regulations 1998 and nationality discrimination under the Equality Act 2010.

The Employment Tribunal held that she provided personal services but was a professional dealing with a client. It therefore held that she was neither a worker for the holiday-pay claim nor an employee for the discrimination claim. On appeal, she advanced two points not raised below: that Capita was not her client, and that Capita was liable as an employment service-provider under sections 55 and 56 of the Equality Act 2010.

The central issue was whether the Appeal Tribunal should allow those new points and, if so, whether either undermined the Tribunal’s decision.

1. Appeal dismissed. The Appeal Tribunal declined to exercise its discretion to permit either new point to be taken. A new point may be allowed only exceptionally. The fact that it may be a good point is insufficient. The court must consider finality, the public interest in points being raised at the earliest reasonable stage, the availability of all necessary facts, and whether the proposed point would effectively restart the case on a new basis.

2. The section 55 point was particularly unsuitable. It had not been pleaded or argued, success would have required an amendment after the proceedings had ended subject to appeal, and the Claimant had previously raised but not pursued a related agency-worker contention. The court could not exclude the need for a different factual analysis.

3. The client point also should have been advanced below. It could have required a wider factual assessment. The facts were not exceptional, and the decision would not prevent other interpreters from bringing properly pleaded claims raising the issue.

4. In any event, the first point failed on its merits. Worker status is normally a factual, multifactorial question requiring attention to the reality of the relationship. It was open to the Tribunal to find that Capita, and previously ALS, were the Claimant’s professional clients. The contractual promise to provide services to Capita, the non-exclusive arrangement, and the freedom to work for others supported that conclusion. The cases concerning an integrated doctor and a solicitor unable to market services elsewhere were materially different.

5. The court also expressed the obiter view that, for an employment service consisting of supplying employers with persons to work, the person protected by section 55(2) is naturally the employer to whom the person is supplied. The court left open the possibility that a more developed purposive argument might justify a different construction in a future case.

• Employment Appeal Tribunal: dismissed the appeal and declined permission to raise two new points of law.
• Employment Tribunal at Manchester: by a judgment dated 1 December 2014, dismissed the holiday-pay and discrimination claims on the basis that the Claimant was neither a relevant worker nor an employee for the relevant statutory purposes.