Meaning of employee

03 October 2014

 

The Employment Appeals Tribunal (EAT) have ruled in a case about the status of workers engaged for a number of short term contracts.

 

Thanks to Emplaw for this report on the EAT decision in Windle & Arada v Secretary of State for Justice.

The EAT had to consider whether the claimants, when providing their services to the Secretary of State for Justice as interpreters, were employees within the meaning of s.83 (2)(a) Equality Act 2010 and in particular whether, when providing those services, they were employed under a contract personally to do work. The interpreters had been engaged personally to do work on a significant number of short term contracts. An Employment Tribunal (ET) had found against the employees, noting the absence of mutuality of obligation and making this a central part of its decision.

The EAT overruled the ET and held that the issue of mutuality of obligation was irrelevant when deciding whether the interpreters fell within the scope of s 83(2) Equality Act 2010 (‘employment under […] a contract personally to do work’). The EAT noted that it was for the ET to determine whether the interpreters provided their services under a position of subordination to the Secretary of State or whether they were truly independent providers of services to the world at large and the Secretary of State was but one of their professional clients. However a lack of exclusivity was not determinative.

As the Court noted, there is a distinction between different categories of employment in different areas of employment law. The jurisprudence applicable to one category will not necessarily apply to another. Mutuality of employment was only relevant when establishing whether someone was employed under a contract of employment (a ‘category a’ worker). Here it was necessary to distinguish between a category (a) worker and a category (b) employee, employed under a contract personally to do work.