Secretary of State for Justice v Windle & Arada

When deciding whether a person working under a contract personally to do work is an employee for discrimination law, the tribunal must examine the substance of the relationship and all the circumstances. The absence of mutual obligations between separate engagements may indicate independence or a lack of subordination during an engagement. It is relevant only to the extent that it illuminates the relationship while the work is performed and is neither conclusive nor an automatic bar to employee status.

The factors relevant to employment under a contract of service and to employment in this extended sense are not essentially different. The boundary is, however, drawn further in favour of the putative employee in the latter category.

Two professional interpreters performed assignments for Her Majesty’s Courts and Tribunals Service on a case-by-case basis. Neither side was obliged to offer or accept further work. The interpreters brought racial discrimination claims under Part 5 of the Equality Act 2010, alleging that their terms were less generous than those of British Sign Language interpreters.

The Employment Tribunal held that they were independent providers of services rather than employees within section 83(2)(a), and dismissed their claims. The Employment Appeal Tribunal allowed their appeals and remitted the claims. It held that the tribunal had wrongly treated the absence of mutuality between assignments as relevant to whether they were employed under contracts personally to do work.

The Secretary of State appealed. The central question was whether the absence of an umbrella contract could properly be considered when assessing employment status under the extended definition.

1. Appeal allowed. The Employment Tribunal had not misdirected itself by treating the absence of an umbrella contract as a relevant factor. Its decision dismissing the claims was restored (per Underhill LJ, Lindblom and Jackson LJJ agreeing).

2. The ultimate question was the nature of the relationship while the work was being performed. Nevertheless, the absence of mutual obligations outside an engagement could influence, or shed light on, the character of the relationship within it. Work undertaken only on an assignment-by-assignment basis might indicate a degree of independence, or lack of subordination, incompatible with employee status in the extended sense. Its relevance and weight depended on the particular facts. Excluding it at the outset would conflict with the requirement to consider all the circumstances.

3. The reasoning in Quashie v Stringfellows Restaurant Ltd [2012] EWCA Civ 1735 was not confined to contracts of service. The factors relevant to deciding whether a person worked under a contract of service were not essentially different from those relevant to employment under a contract personally to do work. For the latter category, however, the boundary was pushed further in the putative employee’s favour, so that the required threshold was lower.

4. The absence of an umbrella contract did not itself deprive a person of protection. It mattered only if, and to the extent that, it contributed to the conclusion that the relationship during an engagement lacked the subordination characteristic of employment. Two people in superficially similar working arrangements might therefore have different status where their surrounding relationships revealed different degrees of independence.

5. Paragraph 72 of Allonby v Accrington and Rossendale College (Case C-256/01) could not be elevated into a universal rule that an absence of obligation to accept assignments was irrelevant. That observation concerned the particular arrangements of lecturers who continued to work much as they had when employed and were not engaged lecture by lecture.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 459, allowed the Secretary of State’s appeal and restored the Employment Tribunal’s dismissal of the claims.
• Employment Appeal Tribunal: By a judgment dated 3 July 2014, allowed the claimants’ appeals and remitted the claims to the Employment Tribunal for reconsideration.
• Employment Tribunal: By a reserved judgment dated 3 April 2013, held that the claimants were not employees within the Equality Act 2010 and dismissed their claims.