Windle v Secretary of State for Justice

The Court of Appeal considered whether casual interpreters who accepted individual assignments from Her Majesty's Courts and Tribunals Service were "employees" for the purposes of Part 5 of the Equality Act 2010 (in particular sections 39 and 83). The legal question was whether the absence of an overarching or "umbrella" contract (and thus an absence of mutuality of obligation between engagements) was relevant to the inquiry whether each discrete engagement showed a relationship of subordination characteristic of an employee under section 83(2)(a) (a contract personally to do work).

The court held that the absence of an umbrella contract or mutuality between engagements can be a relevant factor when assessing the nature of the relationship during an individual assignment. The Employment Tribunal had been entitled to treat the Claimants as independent providers of services; the Employment Appeal Tribunal was wrong to hold that lack of mutuality was irrelevant to the section 83(2)(a) inquiry. Accordingly the Court of Appeal allowed the appeal and restored the Employment Tribunal's decision dismissing the claims.

Background and parties: The claimants, two professional interpreters who worked for HMCTS on an assignment-by-assignment basis and considered themselves self-employed, brought claims in the Employment Tribunal for racial discrimination under Part 5 of the Equality Act 2010 (which protects "employees"). The Ministry of Justice (Secretary of State) argued they were not employees within the meaning of section 83(2)(a).

Procedural history: The Employment Tribunal (Leeds) gave a reserved judgment on 3 April 2013 dismissing the claims for lack of employee status. The Employment Appeal Tribunal allowed the claimants' appeals on 3 July 2014 and remitted the matter to the Employment Tribunal to reconsider, taking the view that absence of mutuality between engagements was irrelevant to the question whether a person was employed under a contract personally to do work. The Secretary of State appealed to the Court of Appeal.

Nature of the claim and issues: The claim was for discriminatory treatment said to arise in terms and conditions offered to the interpreters. The central legal issue on appeal was whether the Employment Appeal Tribunal erred in holding that the absence of an umbrella contract or mutuality of obligation between assignments was irrelevant when determining whether an individual engagement gave rise to an "employee in the extended sense" under section 83(2)(a) of the Equality Act 2010. The court considered the proper approach to distinguishing "truly self-employed" providers from those in a subordinate relationship (drawing on authorities including Hashwani, Allonby and Bates van Winkelhof) and the role of mutuality of obligation evidence.

Reasoning and outcome: The Court of Appeal held that while the decisive enquiry is the nature of the relationship during the engagement (whether the person performs services "for and under the direction of" another and is in a relationship of subordination), the absence of mutuality of obligation between engagements may be relevant and may, depending on the facts, indicate independence inconsistent with employee status. The court rejected the EAT's categorical exclusion of lack of mutuality as irrelevant. Applying that analysis, the Court of Appeal restored the Employment Tribunal's conclusion that the claimants were self-employed independent providers and dismissed their claims.

Appeal allowed. The Court of Appeal held that the absence of an umbrella contract or mutuality of obligation between discrete assignments can be a relevant factor when deciding whether a person is an employee under section 83(2)(a) of the Equality Act 2010; the Employment Tribunal had not misdirected itself in relying on that factor and was entitled to find the claimants were independent providers, so its dismissal of the claims was restored.

Employment Tribunal (Leeds) reserved judgment 3 April 2013: claims dismissed for lack of employee status. Employment Appeal Tribunal (HHJ Peter Clark) judgment 3 July 2014: appeals allowed and claims remitted to the Employment Tribunal for reconsideration. Court of Appeal [2016] EWCA Civ 459 (this judgment): appeal by Secretary of State allowed and Employment Tribunal decision restored.