Mark Humphreys succeeds in the EAT on the meaning of ’employee’
within the Equality Act against the Secretary of State for Justice.
In Windle & Arada v Secretary of State for Justice UKEAT/0339/13/RN the
EAT considered the meaning and application of ’employment’
within s.83(2)(a) Equality Act 2010 and in
particular “…employment under….a contract personally to do
work…” The issue is a critical one for litigants: the Claimants, and more
generally claimants seeking to bring discrimination claims arising from an
employment relationship, have to show they were employees within the meaning of
Dr Windle and Mr Arada, represented before the EAT by Mark
Humphreys through the Free Representation Unit, were interpreters working for,
amongst others, the Courts and Tribunals Service. They were engaged personally
to do work on a large number of short term contracts, typically for the
duration of a hearing or a witness’ evidence. Between assignments there was no
obligation to offer work, nor if offered was there an obligation to accept:
there was, to use a phrase well known to employment lawyers, between
assignments no mutuality of obligation.
At first instance the Employment Tribunal found that the Claimants
fell outside the scope of s.83(2)(a), and so did not benefit from the
protections of the Equality Act, nor were they able to proceed with their
underlying discrimination claim. In coming to this conclusion the Tribunal
relied on the lack of mutuality of obligation between assignments, and it was
this reasoning that was central to the appeal. In upholding the
Claimants’ appeal the EAT found that the lack of mutuality of obligation
between assignments was not a relevant factor in determining the question of
employment under a contract personally to do work.
In its Judgment the EAT emphasised the important distinction in
employment law between different categories of relationship and the different
rights attached to them. Most obviously this is found in the Employment Rights
Act with the distinction between employment under a contract of service and
workers. Critically, the jurisprudence applicable to one category of
relationship will not necessarily apply to another. For example, the Secretary
of State’s submissions relied in part on clear Court of Appeal authority
holding that a lack of mutuality of obligation between assignments may be a
relevant consideration (Quashie v Stringfellow Restaurants Ltd 
IRLR 99), but Quashie was distinguished by the EAT on the grounds that
it was addressing the issue of a contract of employment, not the wholly
separate issue of employment under a contract personally to do work within the
meaning of s.83(2).
The case raises issues of considerable public importance.
Significant numbers of people are engaged under contracts personally to do work
that are not classified as employment contracts. The Claimants are examples, as
are many people in the IT industry. In determining the reach of the anti-discrimination
provisions of the Equality Act an issue arises as to what are the appropriate
considerations for an Employment Tribunal to rely on? In this case the EAT has
provided some valuable direction.
The EAT handed down its judgment on 16 September 2014. A full copy of the judgment is available here.