It has always been clear that truly independent providers of services to the world at large fall outside the scope of the Equality Act 2010. But the extent to which this is true of self-employed, independent contractors working extensively on assignments for only one client has been less than clear. But it now seems that even where self-employed independent contractors devote all, or a substantial amount, of their time to an assignment, they may not be able to rely on the Act’s protection against discrimination, following a recent Court of Appeal decision in a case called Secretary of State for Justice v Windle and Arada.
The case involved two court interpreters who were on the court and tribunal service’s National Register of Public Service Interpreters. They assisted those involved in court proceedings who did not have English as their first language and were engaged to do work personally on a large number of short term contracts. Under these arrangements, there was no guarantee of work, and no obligation on them to accept work when it was offered. The interpreters considered themselves self-employed.
In 2010 the interpreters, who were of Czech and Algerian origin, brought proceedings against the Ministry of Justice, arguing that they had been treated less favourably than British sign language interpreters in relation to their terms and conditions and that this was discrimination on the grounds of race.
Tribunal and EAT
Self-employed individuals will only be protected against discrimination under the Equality Act 2010 if their contract puts them under an obligation to perform the work personally. An employment tribunal held that the claimants were not employees within the meaning of the Act, and so were not protected against discrimination.
On appeal, the Employment Appeal Tribunal held that the key question was whether the interpreters provided their services under a position of subordination, or whether they were truly independent providers of services to their clients, of which the court service was only one. The issue of whether a mutual obligation existed between the claimants and the court service in the gaps between their work assignments was irrelevant.
Court of Appeal
The Court of Appeal noted that a distinction was made between two kinds of self-employed people in the Employment Rights Act 1996:
The essential question was whether the person providing services was in a relationship of subordination with the end-user.
The court agreed with the reasoning in another case, Quashie v Stringfellows Restaurant (which found that there was insufficient mutuality of obligation for a lap dancer to be an employee of the club where she worked) that in order for the contract to remain in force during a break in work engagements, it is necessary to show "an irreducible minimum of obligation" which continues during those breaks. The court held that the absence of an ‘umbrella contract’ was a relevant factor in this assessment of employment status. An umbrella contract is one that spans both work periods and periods when there is no work in an employment relationship in which mutuality of obligation exists. The court decided the translators were not in employment and were, therefore, unable to bring discrimination claims
Although mutuality of obligation between assignments is not a strict requirement for the purposes of meeting the extended definition of ‘employee’ in the Equality Act, it is still something that will be taken into account by courts and tribunals. Following the Windle case, there will be greater scope than previously for employers to argue that staff engaged on a freelance or casual basis will not be able to rely on discrimination law to bring claims against the organisations using their services.
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