A person’s working status is important for all sorts of reasons, but it’s something that often remains unexplored until a problem arises. That is until someone claims employee rights or protection and the employer disputes their entitlement.
A person’s working status is important for all sorts of reasons, but it’s something that often remains unexplored until a problem arises. That is until someone claims employee rights or protection and the employer disputes their entitlement.
In Secretary of State for Justice v Windle and Arada, employment status was critical to the claimants’ race discrimination claims. To be an employee protected by discrimination law, they would need to show that they were in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’.
Both claimants (Dr Windle was Czech and Mr Arada born in Algeria) were professional interpreters who worked for Her Majesty’s Courts and Tribunals Services (HMCTS) on a case-by-case basis. They brought race discrimination claims based on their having less favourable terms of service than British interpreters.
The tribunal held that they were self-employed and outside the scope of discrimination protection. Each assignment was a contract personally to do the work, but there was no mutuality of obligation during those periods in between assignments; in other words, no obligation on HMCTS to offer the claimants work, and no obligation on them to accept work offered.
A key point that reached the Court of Appeal was whether the tribunal was right to have taken account of the fact that there was no mutuality of obligation. The Employment Appeal Tribunal had decided that it was not relevant to whether a person was employed under a ‘contract personally to do the work’.
But the Court of Appeal restored the original tribunal’s decision, dismissing the claims. Mutuality of obligation isn’t the be all and end all, but it is relevant; a lack of it may influence, or shed light on, the character of the relationship. Where someone supplies services on an assignment-by-assignment basis they tend to have a degree of independence or a lack of subordination in their relationship at work, and that is incompatible with employment status. While each case will turn on its specific facts, consideration of all the circumstances requires that mutuality of obligation (or the lack of it) shouldn’t be ignored.
