Capita Translation and Interpreting Ltd v Siacuinas

Whether a person is employed under a contract personally to do work requires an evaluative assessment of all relevant circumstances. Mutuality of obligation between separate engagements may shed light on the relationship during periods when work is performed and must not be excluded at the outset. Relevant considerations may include subordination, discrete engagements, continuing obligations between engagements and integration into the putative employer’s business.

Employment Tribunal decisions do not bind other Employment Tribunals, even where the facts are similar. An Employment Appeal Tribunal detecting an error of law must generally remit the matter unless the result is unaffected or can be determined without making its own factual assessment.

Mr Siacuinas, an interpreter registered with Capita Translation and Interpreting Ltd, provided interpreting services under a framework arrangement between Capita and the Ministry of Justice. An Employment Tribunal held that he was an employee for the purposes of section 83(2)(a) of the Equality Act 2010, although it rejected employment under a contract of employment and found a contract personally to do work.

Capita appealed, alleging errors concerning mutuality of obligation, subordination, integration, the treatment of earlier interpreter cases and the adequacy of the Tribunal’s reasons. The central issue was whether the Tribunal had lawfully assessed the contractual relationship and all relevant circumstances.

1. Appeal allowed and case remitted. The Employment Tribunal had erred in law by adopting the proposition in the Employment Appeal Tribunal’s decision in Windle that lack of mutuality between engagements was irrelevant to whether there was a contract personally to do work. The Court of Appeal had held that the absence of mutuality outside periods of work might indicate independence or lack of subordination during work and that excluding it in limine was inconsistent with considering all the circumstances.
2. The question under section 83(2)(a) of the Equality Act 2010 is evaluative and holistic. The Tribunal must consider all relevant facts, including the nature of the contractual arrangements, subordination, the existence of discrete engagements, obligations between engagements and integration into the putative employer’s business. No single factor, including subordination, is a decisive touchstone.
3. The Tribunal’s findings concerning attendance, professional standards and possible contractual sanctions provided only slight foundations for subordination. They did not explain why the relationship differed from that of an independent professional providing services through an intermediary. The exclusion of mutuality meant that the effect of other factors, including self-employment, the contractual disclaimer, lack of benefits and work for other organisations, required reconsideration.
4. Earlier Employment Tribunal decisions involving similar interpreters’ arrangements were entitled to respect and consideration but were not binding or persuasive in the same sense as decisions of superior courts or tribunals. Each Employment Tribunal had to determine the facts and apply the law for itself. The failure to analyse those earlier decisions was not, by itself, an error of law.
5. Following Jafri v Lincoln College, the Employment Appeal Tribunal could not substitute its own factual assessment. The case therefore had to be reheard by a differently constituted Employment Tribunal, applying the correct legal approach.

• Employment Appeal Tribunal: allowed Capita’s appeal against the Employment Tribunal’s decision and remitted the matter for a complete rehearing by a differently constituted Employment Tribunal.