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Mutuality of Obligation between Assignments could be Relevant in Determining Protection under Equality Act 2010

on Friday, 20 May 2016.

Secretary of State for Justice v Windle and anor,

The Court of Appeal restored an Employment Tribunal's (ET) decision that two court interpreters were self-employed professionals and could not bring a claim for race discrimination under Part 5 of the Equality Act 2010 (EqA 2010).

The Facts

Dr Windle was a Czech national and Mr Arada was an Algerian national. They both worked for Her Majesty's Courts and Tribunals Service (HMCTS) as interpreters and claimed that they were treated less favourably compared with British sign language interpreters.

They brought proceedings against the Ministry of Justice (MoJ) for race discrimination under Part 5 of the EqA 2010, which prohibits discrimination against ''employees'. The EqA 2010 defines 'employment' as 'employment under a contract of employment, a contract of apprenticeship or a contract personally to do work'.

The ET's Decision

The ET dismissed Dr Windle and Mr Arada's claim. It considered that each time they accepted an assignment from HMCTS it was a contract personally to do work and that:

  • there was no persisting contractual relationship between each assignment carried out for HMCTS
  • there was an absence of mutuality of obligation between the assignments (ie. HMCTS was not obliged to offer work to Dr Windle and Mr Arada and they were not obliged to accept any work that was offered)

For these reasons, the ET concluded that Dr Windle and Mr Arada could not be considered to be in 'employment' for the purposes of the EqA 2010.

The Employment Appeal Tribunal's (EAT) Decision

Dr Windle and Mr Arada successfully appealed to the EAT. The EAT considered that the ET had erred in law by taking into account the fact that there was no mutuality of obligation between assignments.

The Secretary of State for Justice appealed to the Court of Appeal, which restored the ET's decision. The Court of Appeal indicated that all of the circumstances of a case, including whether an ongoing contractual relationship persists between working assignments, should be considered when deciding whether an individual is an employee for the purposes of the EqA 2010.

It was noted that 'the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense'.

Best Practice

The extent to which those engaged to perform work are afforded protection under the EqA 2010 is relevant to all organisations, particularly where they are engaging staff on a casual, zero hours or freelance basis.

If, as this case suggests, an absence of mutuality of obligation between assignments might be a relevant factor in determining employee status for the purposes of the EqA 2010, it could be argued that such individuals are not protected against discrimination under the EqA 2010.

It is, however, important to stress that the lack of mutuality of obligations was only one relevant factor and the extent to which an individual may be covered will depend on all of the circumstances.

In any event this case should not be seen as giving carte blanche to discriminate and it remains the case that organisations should ensure that they do not discriminate against any individual irrespective of their assumed employment status.

For more information, please contact Lorna Scully in our Employment Law team on 0121 227 3719.

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