Capita Translation and Interpreting Limited v Siauciunas (worker and employee status)

worker status employment tribunal

Capita Translation and Interpreting Limited v Siauciunas – Appeal No. UKEAT/0181/16/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 12 January 2017

Judgment handed down on 23 February 2017

Before

HIS HONOUR JUDGE HAND QC

(SITTING ALONE)

CAPITA TRANSLATION AND INTERPRETING LIMITED                                 APPELLANT

(1) MR R SIAUCIUNAS (DEBARRED)

(2) MINISTRY OF JUSTICE                                                                       RESPONDENTS

 

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR TARIQ SADIQ

(of Counsel)

Instructed by:

Messrs Irwin Mitchell LLP Solicitors

2 Wellington Place

Leeds

LS1 4BZ

For the First Respondent First Respondent debarred from taking part in this appeal
For the Second Respondent No appearance or representation by or on behalf of the Second Respondent

 

SUMMARY

JURISDICTIONAL POINTS – Worker, employee or neither

The Respondent was an interpreter providing his services to the Appellant with whom he was registered and his services were then provided to HMCTS (MHA) under the provisions of a Framework Agreement.  In holding that the Respondent was an employee as defined by section 83(2)(a) of the Equality Act 2010 the Employment Tribunal had erred by excluding consideration of the nature of the relationship between the Appellant and the Respondent when he was not providing such services and in particular considering whether there was or was not mutuality of obligation in that period.  The decision of the Court of Appeal in Windle and others v Secretary of State for Justice [2016] ICR 721 applied and the judgments in the Court of Appeal in Pimlico Plumbers Ltd and Mullins v Smith [2017] EWCA Civ 51 considered.  The appeal was allowed on this point, which arose out of an amendment of the grounds of appeal.  The argument that this Tribunal should substitute a finding that the Respondent was not an employee as defined was rejected (Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 20 applied).  The matter was remitted for a complete rehearing by a different fully constituted Employment Tribunal (Sinclair Roche & Temperley v Heard and another [2004] IRLR 763 considered).

 

The doctrine of precedent applicable in the High Court and in this Tribunal, namely that previous decisions are “persuasive” and should be followed unless there is good reason not to do so (see Lock v British Gas Trading Ltd (No.2) [2016] IRLR 316) does not apply to an Employment Tribunal considering previous decisions of other Employment Tribunals even when those relate to similar factual situations and even when the factual situation is more or less identical.  Each Employment Tribunal must decide cases based on its own findings of fact and its own interpretation of the law; Gilham and others v Kent County Council (No.2) [1985] ICR 233 considered and applied.

 

HIS HONOUR JUDGE HAND QC

 

Introduction

  1. This is an appeal from the Judgment and Written Reasons of an Employment Tribunal, comprising Employment Judge Slater, sitting at a Preliminary Hearing at Manchester on 17 December 2015 (with a deliberation day in chambers on 28 January 2016), the decision having been sent to the parties on 15 February 2016. Employment Judge Slater concluded that the Respondent, the Claimant below, was an employee within the definition of the Equality Act 2010 (“EqA”).  Other aspects of her Judgment are either dependent on that conclusion or are not the subject of the appeal.

 

  1. The Appellant was the First Respondent below. The Second Respondent, the Ministry of Justice (“MOJ”) is not an active party to this appeal and the Claimant, who I will henceforth call “the Respondent”, has been debarred by the Registrar, with effect from 19 August 2016, from taking any further part in the appeal as a result of his failure to file an Answer or respond to Orders and communications from this Tribunal (see page 84 of the appeal bundle).  The Appellant has been represented before this Tribunal, as it was at the Employment Tribunal, by Mr Sadiq of counsel.

 

  1. Between the hearing and my writing of this Reserved Judgment the Court of Appeal has handed down its judgment in the appeal in Pimlico Plumbers Ltd and Mullins v Smith [2017] EWCA Civ 51. I am conscious of the fact that, therefore, Mr Sadiq has not had the opportunity to say anything about that judgment.  I also must bear in mind that at paragraph 143 of his judgment Underhill LJ said this:

“143. … As will be apparent, the resolution of this issue has depended on an analysis of the contradictory and ill-thought-out contractual paperwork in the context of the Judge’s findings about what happened on the ground.  That means that although employment lawyers will inevitably be interested in this case – the question of when a relationship is genuinely casual being a very live one at present – they should be careful about trying to draw any very general conclusions from it. …”

 

Nevertheless, it seems to me I should refer to some passages from both the judgment of Sir Terence Etherton MR and that of Underhill LJ on matters I regard as apposite to this appeal.

 

The Background

  1. There has always been a need in the courts and tribunals of the various jurisdictions of the United Kingdom for the interpretation of both the evidence and of the proceedings generally into languages other than English (or in Wales, other than Welsh or English) but as a result of the development of ethnic and cultural diversity there has been a very significant increase in that need in recent years. In 2011 existing systems giving access to court interpreters (essentially based on a system of registration on a list held centrally by the MOJ) were replaced by the MOJ entering into what has been called a “Framework Agreement” (“FA”) with an entity which was then called Applied Language Solutions Limited and which was acquired by the Appellant in the same year.  Under the provisions of the FA the Appellant provides interpreters as required by courts and tribunals.  This change has resulted in a series of claims being made to Employment Tribunals by interpreters.  One case, that of Dr Windle and two others (Windle and others v Secretary of State for Justice), was concerned with alleged disadvantages, which the Claimants contended arose out of the change itself.  The Employment Tribunal’s Judgment and Written Reasons in that case were the subject of an appeal to this Tribunal ([2014] IRLR 914) and, subsequently, to the Court of Appeal ([2016] ICR 721).  The litigation involved different parties and, although some of the issues are said to be common to this case, no question of any form of res judicata arising out of that case has been raised in this case, probably because, given the differences in terms of parties and facts, it would be very difficult to sustain.
  2. But three subsequent cases obviously involved the Appellant. These are Awan v Capita Translation and Interpreting Ltd, decided by a Judgment and Written Reasons of an Employment Tribunal sitting at Manchester and sent to the parties on 6 January 2014; Khan v Capita Translation and Interpreting Ltd, decided by an Employment Tribunal sitting at London Central with the Written Reasons having been sent to the parties on 7 October 2014; and Chet v Capita Translation and Interpreting Ltd, decided by an Employment Tribunal, also sitting at Manchester, the Judgment and Written Reasons having been sent to the parties on 1 December 2014.  Both of the first instance decisions in the cases of Khan and Chet resulted in appeals to this Tribunal.  The appeal in Khan was withdrawn without any hearing on the merits but the appeal in Chet proceeded to a Full Hearing before the then President of this Tribunal, Langstaff J.  The appeal was dismissed on 24 July 2015 but although no application was made for a transcript of the ex tempore judgment delivered on that day by the President, as a result of this appeal an approved and corrected one has since become available, thanks to the good offices of both the current President, Simler J, and to Langstaff J.

 

  1. No doubt in each of these three cases different arguments assumed greater or less prominence than they might have had in the instant case but I am told by Mr Sadiq of counsel, who appeared for Capita in all three of them, that the evidence of the Appellant in all of them comprised the same witness statement put before Employment Judge Slater in this case. But there is no suggestion in any of the grounds of appeal that the principles of res judicata apply as between the three previous cases and the instant appeal and given that each Claimant is different that is understandable.

 

  1. Nevertheless, perhaps in the same form or perhaps in four somewhat different forms or, at least, with rather different points being emphasised, the fundamental issue as to whether the relationship between the respective Claimants and the Appellant is such as to bring that relationship within the scope of the EqA (or very closely related statutory provisions) has now been serially and consecutively litigated on four (five, if the Windle case is included) different occasions. The position is that on three occasions at first instance (or four if one does not exclude the Windle case, which arguably should be excluded because it is dealing with different parties and a somewhat different factual matrix) it has been decided that the relationship between the interpreter and the Appellant did not fall within the scope of section 83(2)(a) of the EqA.  One issue I have to consider is whether an Employment Tribunal decision only has persuasive effect so far as other Employment Tribunals are concerned or whether the Employment Judge Slater was not bound to follow the previous decisions (as she said in her Written Reasons – see below), although the extent to which she might have been obliged to explain why she was departing from them is a subsidiary issue on this appeal.  She would be bound, however, by the decision of this Tribunal on appeal in the Chet case insofar as anything which was part of the ratio decidendi of that case impacted upon the instant case.  It is true that at paragraph 10 of the judgment of this Tribunal in Chet the judgment of the Employment Tribunal was described as “a conscientious, careful and often thoughtful contribution to the field”.  In the end, however, it turned on the findings of fact made at first instance.  It has to be said, however, that the facts, as opposed to the interpretation of the facts, were more or less common to both the Chet case and the instant appeal.  Whatever the relationship may be the practical result is that this factual matrix seems to be being serially re-litigated and as between the Chet case and this case the facts have been differently interpreted.  Irrespective as to whether that provides a basis to challenge the soundness of the Judgment and Written Reasons in this case that seems to me be a most unsatisfactory state of affairs.

 

The Issue

  1. Section 83(2) of the EqA reads:

“(2) “Employment” means –

(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; …”

 

Obviously there was no question of the Respondent being employed under a contract of apprenticeship and Employment Judge Slater concluded that he was not employed under a contract of employment (see paragraph 60 of the Written Reasons) and that has not been challenged by the Respondent.  Unlike other Employment Tribunals, however, she concluded that he was an employee because there was a contract that he was personally to do work.  The issue is did she err in law in reaching that conclusion?  In order to answer that one must pose the further question – how did she arrive at that conclusion?

 

The Written Reasons

  1. The Respondent is a Lithuanian speaker of Lithuanian origin who had been registered with the Appellant as an interpreter for about 2 years. He then complained that by reason of the protected characteristics of his race and of his religious or philosophical beliefs he had been subjected to less favourable treatment when compared to interpreters of the Russian language (see paragraph 17 of the Written Reasons).  In 2012 or possibly 2011 (the earlier date appearing at paragraph 18 of the Written Reasons although the latter date had been given in both Windle and Chet) the Appellant entered into what has been called a “Framework Agreement” (“FA”) with the MOJ to provide the services of interpreters to courts and tribunals administered by a Department of the MOJ, namely Her Majesty’s Courts and Tribunal’s Service (“HMCTS”).

 

  1. As a result of the Respondent being registered with the Appellant he would be informed of vacancies for any particular appointment as an interpreter in any particular case by e-mail, by text message or by telephone. Employment Judge Slater described this process as being “offers” of “the job” (see paragraph 23 of the Written Reasons).  Such notifications might also be sent to others on the register, who were suitably qualified to act as interpreters in the particular case.  Where more than one recipient of such a notification responded positively indicating a wish to be appointed, the Appellant would choose who should be appointed.

 

  1. Employment Judge Slater says this at paragraph 25 of the Written Reasons:

“25. There is no obligation on the First Respondent to offer work to any interpreter.  There is no obligation on an interpreter to accept any job offered.”

 

I am not entirely clear from the Written Reasons whether, if any such recipient indicated a willingness to be appointed, then the Respondent was obliged to appoint.  Employment Judge Slater seems to me not to have made a clear finding as to that unless the first sentence of paragraph 25, as quoted above, is to be interpreted as such a finding.  Be that as it may, she did find that once the Respondent confirmed the appointment then the interpreter was obliged to attend at the time notified to the interpreter by the relevant court administration (see paragraph 26 of the Written Reasons).

 

  1. The specific agreement that Employment Judge Slater found had been arrived at between the interpreter and the Appellant upon appointment was governed by the terms set out in the Interpreting Services Agreement (“ISA”) (see paragraph 27 of the Written Reasons). Having considered the terms of the ISA and examples of how clause 11.8 of the ISA, which precluded the interpreter from assigning, subcontracting or transferring the duties of interpretation in any particular case without consent, operated in practice, she concluded that the practice was that the interpreter might suggest a substitute.  Such a proposed substitute might be registered with the Appellant already and in such circumstances the Appellant would then “release” the first interpreter and appoint the substitute (see paragraph 31 of the Written Reasons).  If the substitute was not registered then, providing adequate time existed to complete the necessary checks before the duties of interpretation were due to start, then such a non-registered substitute might be considered (see also paragraph 31 of the Written Reasons).  Also she found that late cancellation might be allowed in some circumstances but the interpreter cancelling the appointment might thereby be liable to suffer a financial penalty.  Likewise failure to attend court at the appointed time and on the appointed day might also result in a penalty (see paragraph 32 of the Written Reasons).  There was no disciplinary procedure, as such, but the Appellant could sanction the interpreter’s conduct by giving a warning, by suspension or by simply not using the interpreter in future (see paragraph 40 of the Written Reasons).

 

  1. Such equipment as was necessary to carry out the task of interpretation was to be provided by the interpreter (see paragraph 34 of the Written Reasons). The only stipulation as to how the interpretation was to be carried out was that the ISA required the interpreter to comply with the provisions of the Interpreter Code of Professional Conduct (see paragraph 32 of the Written Reasons).  This included requirements as to dress.  There was also an “Interpreter Handbook” published by the Appellant and this gave guidance on how certain situations that might be encountered whilst carrying out duties as an interpreter should be handled.

 

  1. The interpreter was subject to the self-employed taxation regime of schedule D and by clause 11.5 the ISA stated both that the interpreter was solely responsible for his or her taxation liabilities and that the ISA was not to be construed as having the effect of creating the relationship of employer or employee or worker or contractor between the interpreter and the Appellant and furthermore that the interpreter should not hold himself or herself out as such. Remuneration for the services performed by the interpreter was paid by the day without any provision for holiday pay, sick pay or pension (see paragraph 37 of the Written Reasons).

 

  1. In directing herself as to the law, Employment Judge Slater considered section 83(2)(a) of the EqA. She referred herself to the judgment of the Supreme Court in Jivraj v Hashwani [2011] ICR 1004, concentrating particularly on the terms of the judgment given by Lord Clark.  Part of his judgment was based on an analysis of the distinction, which had been made by the European Court of Justice (“ECJ”) in Allonby v Accrington & Rossendale College [2004] IRLR 224, between the concept of a “worker” and “an independent providers of services”, concepts which were relevant to Article 141 (1) of the Treaty of Rome (subsequently Article 157 of the Treaty on the Functioning of the European Union as consolidated pursuant to the Treaty of Lisbon).  These were concepts which Lord Clark regarded as being equally applicable to section 83(2)(a) EqA.  By paragraph 67 of its judgment in Allonby the ECJ described a worker as being “a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration”.  By contrast there were those who were “independent providers of services who are not in a relationship of subordination with the person who receives the services” (see paragraph 68 of the ECJ judgment in Allonby).  In the judgment of Lord Clarke in Jivraj v Hashwani such a distinction was equally applicable to the interpretation of the statutory phrase “a contract personally to do work” which is found in section 83(2)(a) of the EqA (see paragraph 27 of his judgment).  This led Lord Clarke to reach the conclusion that although the arbitrator in Jivraj v Hashwani:

“40. … may be providing services for the purposes of VAT and he of course receives fees for his work, and although he renders personal services which he cannot delegate, he does not perform those services or earn his fees for and under the direction of the parties as contemplated in para 67 of Allonby.  He is rather in the category of an independent provider of services who is not in a relationship of subordination with the parties who receive his services, as described in para 68.”

 

  1. By contrast, however, Employment Judge Slater noted that in O’Brien v MOJ [2013] IRLR 315 the Supreme Court had held that a part-time Judge was a “worker” citing the remarks of the then President of this Tribunal, Langstaff J, in Halawi v WDFG UK Ltd t/a World Duty Free UKEAT/0166/13:

“37. … His job would by the principles established in Hashwani and in Allonby have been to ask whether a person performed services for and under the direction of another person, looking therefore to control the flipside of which in large part is subordination, and would have to do so by having regard to all the factors and circumstances. … The absence of control over the Claimant feeds into the issue of subordination. …”

 

To that passage Employment Judge Slater added the following passage from paragraph 4 of the judgment of Arden LJ in the same case in the Court of Appeal ([2014] EWCA Civ):

“4. … The criteria include a requirement that the putative employee should agree personally to perform services, and a requirement that the putative employee should be subordinate to the employer, that is, generally be bound to act on the employer’s instructions. …”

 

Employment Judge Slater also considered the judgment of a division of this Tribunal presided over by HHJ Clark in Windle v Secretary of State for Justice [2014] IRLR 914.  She refers specifically to paragraph 24 of the judgment, which accepted the proposition that there is “no material difference” between the definitions of a “worker” in the ERA and what HHJ Clark called “the category (b) EqA employee”.

  1. She also found paragraph 31 of the judgment in Windle to be compelling enough to cite part of it:

“31. The picture which is emerging from the cases is that a distinction must be drawn between those who market their services to the world in general and those who work in a subordinate position in circumstances where they are integrated into the business of the putative employer. …”

 

  1. She also emphasised at paragraph 52 of the Written Reasons, but did not quote, paragraph 54 of the judgment of HHJ Clark summarising it as deciding “that lack of mutuality between engagements was relevant to the question whether there was a contract of employment but not to the question of whether there was a contract personally to do work”. I think it would enable a better understanding of her conclusions and reasoning if I set out now the whole of paragraph 54.

 

  1. It reads:

“54. In the course of argument Mr Sheldon maintained his position that a lack of mutuality between engagements was relevant not only to the contract of employment question but also the separate question of employment under a contract personally to do work.  We disagree.  In our judgment that lack of mutuality is relevant to the former and not to the latter.  In rejecting Mr Sheldon’s submission we have concluded that the employment tribunal fell into error, taking into account, at paragraph 164, an irrelevant factor when considering the category (b) employee question.  It was relevant to the contract of employment question, as to which the employment tribunal correctly found that these claimants were not employed under contracts of employment.”

 

Employment Judge Slater’s Judgment and Written Reasons were sent to the parties on 15 February 2016 by which time the Court of Appeal had heard argument on the appeal against the decision of HHJ Clark’s division of this Tribunal, which appeal only challenged the above conclusion.  Judgment allowing the appeal on that single point was not given until May 2016.  It will need to be discussed later in this Judgment.

 

  1. Employment Judge Slater did, however, think it appropriate at paragraph 53 of the Written Reasons to quote part of paragraph 55 of the judgment of HHJ Clark. In fact she omitted only one sentence and, later in the paragraph, a small part of another.  The latter omission is of no significance but I have included the omitted sentence below (in square brackets and italics) so as to give the complete picture of what is under discussion.  Paragraph 55 reads in full:

“55. That is not to say, on a separate point, that what the claimants did when not working for the respondent is irrelevant to the category (b) question.  It is for the employment tribunal to determine whether these claimants provided their services under a position of subordination to the respondent or whether they were truly independent providers of services to the world at large and the respondent was but one of their professional clients.  [As to that, Mr Sheldon rightly points to the employment tribunal’s findings at paragraph 128, noting that they did not provide their services to the respondent with the exclusivity with which Dr Westwood provided his hair restoration services to HMG.]  However, a lack of exclusivity is not of itself determinative.  It is for the ET to consider all relevant factors to determine the question of subordination identified by the Supreme Court in Hashwani and considered by the employment tribunal at paragraph 170.  It will also be necessary to make a clear finding as to whether, when carrying out assignments for the respondent, the claimants were integrated into the HMCTS organisation … The fact that they exercised their own professional judgment (subject to directions contained in the HMCTS Handbook) is not fatal to category (b) employee status.  Dr Westwood was not told what advice he should give his patients in order to restore a full head of hair; nor were Mr O’Brien and Ms Price told how to decide the cases which came in front of them, for the purposes of determining whether they were ‘workers’ other than employees under a contract of employment.”

 

  1. Employment Judge Slater reached her conclusions on the issue in this appeal starting at paragraph 61 of the Written Reasons putting the question that she had to decide in these terms:

“61. … This leaves the issue as to whether the claimant had a contract with the First Respondent personally to do work.  The issue must be examined in relation to the individual assignments.  As Windle confirms, the lack of mutuality of obligation between assignments is not relevant to whether there is a contract personally to do work in relation to an assignment.”

 

So she nailed her colours firmly to the mast of the reasoning of HHJ Clark’s division of this Tribunal in Windle.

 

  1. At paragraph 62 of the Written Reasons she concluded that self-employment and the lack of holiday or sick pay and performance appraisal were not factors preventing the Claimant from being an employee within the meaning of the EqA. She said:

“62. … factors which would be relevant to determining whether the claimant was employed under a contract of employment … do not assist with whether he had a contract personally to do work.”

 

Her reasoning continues at paragraph 63:

“63. There is clearly a contract between the claimant and the First Respondent when the claimant is engaged for an assignment.  The Interpreting Services Agreement sets out the terms of the agreement.”

 

and this must lead to her conclusion at paragraph 64 “… that there is an obligation on the claimant to provide the interpreting services personally”.

 

  1. She found that there was no power of substitution (presumably drawing on the factual conclusions reached at paragraph 31 of the Written Reasons) and said at paragraph 65 this left only the issue of:

“65. … whether the claimant was an independent supplier of services not in a relationship of subordination with the First respondent, such that the contract between the claimant and the First Respondent is to be considered, in accordance with applicable case law, as not being a contract personally to do work.”

 

  1. In the following paragraphs (paragraphs 66 to 68 of the Written Reasons) she answers that question as follows:

“66. I conclude that the claimant, when carrying out an assignment, was in a position of subordination with the First Respondent.  He had to go where he was assigned to go at the appointed time.  The First Respondent required him to act in accordance with the directions of the Second Respondent as to the tasks he was required to perform on arrival at a court.  He was required to comply with the First Respondent’s Code of Professional Conduct.  This sets out what are described as fundamental provisions that Capita expects their interpreters to follow.  These include acting impartially, not giving advice to the person to whom they are interpreting and not entering into discussion with them (other than for stated limited purposes) and interpreting to the best of their ability.  There are prohibitions on wearing certain types of clothing.  If the First Respondent has concerns about an interpreter e.g. if they are consistently late for jobs, they may give them a warning, suspend them from taking jobs for a period or stop using their services completely in accordance with the written sanctions policy.  The First Respondent does not otherwise tell the claimant how he should do the job of interpreting, but this is no different to the level of control that would be exercised over any professional interpreter who had a contract of employment.  Similarly, as Judge Peter Clark held in Windle, judges and a medical practitioner have been held to be “workers”, a definition which the EAT said was not materially different to the definition of an employee under the Equality Act 2010, despite their “employers” not telling them how to perform their professional functions.  The reality is that many skilled professionals employed under contracts of employment have no more control exercised over how they carry out their professional functions than the First Respondent exercised over how the claimant carried out his interpreting work whilst on an assignment.  The claimant was in a very different position vis-à-vis the First Respondent when carrying out an assignment to that of an arbitrator vis-à-vis the parties to an arbitration.  The arbitrator is not in a position of subordination to the parties to the arbitration.  I conclude that the claimant was in a position of subordination to the First Respondent.

  1. I conclude that, whilst carrying out assignments, the claimant was integrated into the First Respondent’s organisation to the extent any interpreter sent out by the respondent to perform an assignment would be, even if they were employed by the First Respondent under a contract of employment.
  2. The claimant did not provide services exclusively to the respondent. He also provided interpreting services for other organisations. This lack of exclusivity is a relevant factor but is not determinative of the question whether he had a contract personally to do work.  I do not consider that the claimant’s relationship with the First Respondent was analogous to the relationship of a solicitor or barrister or tradesman with one of their clients.  These are examples of truly independent providers of services to the world.  I do not consider that the claimant was a truly independent provider of services to the world in the sense referred to in Windle.  The fact that he provided his services to a number of other organisations does not make him a truly independent provider of services to the world.  Rather, he had a number of part-time “jobs”.”

 

  1. Finally, Employment Judge Slater acknowledged at paragraph 70 that other Judges at first instance had reached different conclusions in “cases relating to the same working arrangements for interpreters with the First Respondent”. Whilst she treated “their decisions with the greatest respect” she had reached her own conclusions “applying the law to the facts”.

The Appellant’s Submissions

  1. There are five grounds of appeal, which can be summarised as follows:
  2. the Employment Tribunal failed to take relevant factors into account when considering section 83(2)(a) of the EqA;
  3. the Employment Tribunal failed to consider the impact of the relationship between the Appellant and the Respondent in the context of section 83(2)(a) of the EqA;

iii.     the Employment Tribunal failed to consider prior decisions on the same facts and/or rejected them without giving adequate reasons for doing so;

  1. the Employment Tribunal failed to make findings of fact relating to the issue of integration and/or accepted that the Respondent was integrated into the business of the Appellant without giving adequate reasons for doing so;
  2. the Employment Tribunal misdirected itself as to subordination and/or reached a decision on subordination that no reasonable tribunal properly directing itself on the factual evidence could have reached (i.e. perversity).

 

  1. In relation to ground 1 Mr Sadiq complained that Employment Judge Slater failed to explain why absence of holiday or sick pay and performance appraisal was not significant in relation to deciding whether the Respondent was employed pursuant to a contract personally to do work as required in the alternative formulation in section 83(2)(a) of the EqA. He referred to paragraph 53 of the judgment of a division of this Tribunal presided over by the then President, Langstaff J in Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, who, in a well-known passage, described the essential difference between somebody “actively marketing his services as an independent person to the world” and somebody “recruited by the principal to work for that principal as an integral part of the [business]”.  As had been emphasised by the judgment of the Court of Appeal in Windle (see paragraph 23) any decision in relation to section 83(2)(a) of the EqA involved consideration of all the circumstances.

 

  1. In other words the decision to be made was multifactorial but Employment Judge Slater had ignored significant findings (e.g. the finding of self-employment, the finding of provision by the Respondent to others on the basis of self-employment, that the provisions of clause 11.5 of the ISA, to which the Respondent had bound himself, clearly set out that there was no employer/employee relationship and that there was no mutuality of obligation). Moreover as well as ignoring her own findings, Employment Judge Slater had failed to appreciate other important facts namely, that the “Interpreters Book” referred to the interpreters as “freelance suppliers”, the process of engagement involved little more than registration of production of the necessary qualifications, that offers of work could be, and on the facts were, declined and that the Respondent had never committed himself or been obliged to commit himself to work exclusively for the Appellant.

 

  1. Finally, in this context, although it might be thought that this is the more fundamental point, Mr Sadiq submitted that Employment Judge Slater had misdirected herself in law by relying on the correctness of paragraph 54 of the judgment of a division of this Tribunal presided over by HHJ Clark. It is a point raised in his skeleton argument but not, as it seems to me, one raised by the existing terms of ground 1 of the grounds of appeal.  Paragraph 54, set out above at paragraph 19 of this Judgment, asserted the irrelevance of any lack of mutuality of obligation in the period between engagements.  It was the sole subject of the appeal to the Court of Appeal in Windle and the proposition was rejected at paragraph 23 of the judgment of Underhill LJ, which in effect was the judgment of the Court of Appeal, in these terms:

“23. … I accept of course that the ultimate question must be the nature of the relationship during the period that the work is being done.  But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it.  It seems to me a matter of common sense and common experience 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 a lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense.  Of course it will not always do so, nor did the employment tribunal so suggest.  Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.”

 

Thus, Mr Sadiq submitted, the case had been decided at first instance, by deliberately excluding consideration of what should have been regarded as a very significant factor.  This submission is somewhat strengthened by what the Court of Appeal said in Pimlico Plumbers.  Windle is mentioned, without reservation, by Sir Terence Etherton MR and by Underhill LJ in their respective judgments and at paragraph 145 of his judgment Underhill LJ specifically refers to paragraphs 22 to 25 of his judgment in Windle as representing the law on the issue of mutuality of obligation during periods when the Claimant is not working.  Finally, on ground 1, Mr Sadiq submitted in his skeleton argument that if I accepted the proposition that there was a clear error of law then I might be in a position to decide the case myself.

 

  1. Mr Sadiq developed the second ground of appeal by reference to the terms of the remission back to the Employment Tribunal by this Tribunal in the Windle Of course, that remission was rendered otiose by the Court of Appeal overturning the judgment of this Tribunal.  Nevertheless Mr Sadiq relied upon it as being instructive as to what was at issue in cases of this kind.  In Windle this Tribunal had sent the case back for consideration as to whether the interpreters provided their services to HMCTS “as their client or customer as part of an independent business undertaking” (see paragraph 58 of the judgment).  This reflected the fact that, as was recognised in Windle (see paragraph 27 of the judgment), authority at the highest level has accepted that for all intents and purposes the concepts involved in section 83(2)(a) of the EqA and in section 230(3)(b) of the Employment Rights Act 1996 (“ERA”) are, despite the more extensive language of the latter, essentially the same (see Jivraj v Hashwani (cited above) and Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] IRLR 641).

 

  1. That being so, it follows it was necessary to consider whether the Respondent was in a client relationship with the Appellant to whom he was providing professional services. Significantly, submitted Mr Sadiq, this was an alternative finding by Employment Judge Holmes in the Chet case (see paragraph 59 of the Written Reasons in that case) and although the upholding of that finding by this Tribunal was essentially obiter dictum because this Tribunal refused to consider points not argued below, it was important to recognise the appeal in Chet had been dismissed in terms supportive of that interpretation of the factual matrix in Chet, which was identical to that in the instant case.

 

  1. This brings me to the third of Mr Sadiq’s submissions, namely that Employment Judge Slater had, in effect, ignored the three previous cases of Awan, Khan and Chet. Moreover, Employment Judge Slater also makes no reference at all to the case of Windle.  He has referred me to the judgment of a division of this Tribunal presided over by Singh J in Lock v British Gas Trading Ltd (No.2) [2016] IRLR 316.  Paragraph 75 of his judgment sets out the principles applicable where a division of this Tribunal is considering departing from earlier decision at this level.  At the very least, submitted Mr Sadiq, Employment Judge Slater was obliged to explain why the conclusions reached in the three cases of Awan, Khan and Chet were not applicable in this case on her analysis.

 

  1. Ground 4 complains about the conclusion that the Respondent was integrated into the business of the Appellant during the course of fulfilling each engagement. The complaints are about the quality of the evidence, the nature of the reasoning process and the adequacy of the stated reasons.  As to the quality of the evidence, as with ground 1 Mr Sadiq complained about the lack of evidence relating to employed interpreters and the assumption that the work of interpretation in a court or tribunal would have precisely the same character as it would if the Respondent had been employed.  Mr Sadiq attacked this as a meaningless comparison and one not based on any evidence at all.  Moreover it ignored the facts as found, namely that the Appellant provided no equipment, that interpreters were free to work for other organisations, that interpreters were not subject to discipline and that the points made by Employment Judge Holmes in paragraph 58 of the Written Reasons in the Chet case appear never been considered at all or, at least, have not been distinguished or differentiated in the Written Reasons in the instant case.

 

  1. Ground 5 alleges a misdirection on the issue of subordination. The findings of Employment Judge Slater are set out at paragraph 66 of the Written Reasons and it is not contended that the Employment Judge Slater was unaware of the right approach to subordination because she had referred to it at paragraph 48 of the Written reasons by quoting what was in fact paragraph 37 of the judgment of a division of this Tribunal presided over by Langstaff J in the case of Halawi.

 

  1. So far so good; where it had gone wrong, however, was in the application of that test to the factual findings. These amounted to no more than the Respondent being required to attend appropriately dressed and on time at the designated court or tribunal and act professionally as an interpreter, in the knowledge that if he did not then he might be liable to certain contractually provided sanctions.  In themselves these were very slight factual foundations upon which to base the concept of subordination.  Moreover they ignored the lack of mutuality of obligation, which had been wrongly dismissed on the basis that it was not relevant, and the fact that there was no control whatsoever by the Appellant on what happened at court.  An expectation of adherence to professional standards was the most that could be said but that fell far short of the exercise of control.

 

  1. The conclusion reached by Employment Judge Slater never explained why other Judges had been wrong to reach the opposite conclusion on the same factual matrix and never explained why the limited degree of control that she found existed in any way distinguished the circumstances of the Respondent from that of any other professional person providing the services to an end-user through an intermediary. This was either a perverse decision or one that was inadequately explained.

 

Discussion and Conclusion

  1. I must accept Mr Sadiq’s argument that Employment Judge Slater misdirected herself by adopting as being correct in law the statement made by HHJ Clark at paragraph 54 of the judgment in Windle. Homer does, however, nod occasionally and at paragraph 23 of his judgment on appeal in that case Underhill LJ said it was an error to exclude lack of mutuality of obligation from consideration as to whether there was a contract to do work personally.  This is precisely what Employment Judge Slater did and so she made an error of law.  Whilst this clearly appears in his skeleton argument, as I pointed out above it is not actually in the grounds of appeal.

 

  1. When discussing this with Mr Sadiq I was disposed to accept the proposition that a broad reading of the existing grounds of appeal would encompass the argument. Upon reflecting further whilst preparing this Judgment, I have come to the conclusion that this is not acceptable and there must be an amendment.  I recognise that the Respondent is taking no part in the proceedings and I have borne that in mind when considering how to address the omission.  It seems to me, however, that the point raised by Mr Sadiq in the skeleton argument is so obviously correct that I ought to allow the grounds of appeal to be amended, notwithstanding the lack of engagement by the Respondent.  In effect, he has chosen not to be part of this process and it seems to me that to allow an amendment, therefore, puts him at no greater disadvantage than arises through his own conduct in respect of the proceedings.  I will accordingly allow an additional ground 1(a) to be added in these terms:

The Employment Tribunal misdirected itself as to the law by applying the analysis of the division of this Tribunal presided over by HHJ Clark in Windle v Secretary of State for Justice [2014] IRLR 914 as contained in paragraph 54 of the judgment whereas the contrary proposition accepted by the Court of Appeal as set out in paragraph 23 of the judgment of Underhill LJ represents the correct view of the law.

 

Amended grounds of appeal in those terms must be filed at this Tribunal and served on the Respondent within 14 days of the handing down of this Judgment.

 

  1. Employment Judge Slater is, of course, beyond criticism in respect of this error. The judgment of Underhill LJ was given after she had made her Judgment and given her Written Reasons, at which time the law was as stated by HHJ Clark’s judgment, which was binding on her.  Nevertheless, to that extent, at least, ground 1a of the grounds of appeal is made out.  The question is what is the effect of this error?

 

  1. Mr Sadiq submitted in writing and orally that this error was such that not only must the appeal be allowed but also I should dispose of it by substituting the conclusion that the Respondent was not in employment in the sense provided for by section 83(2)(a) of the EqA, namely that he was not employed under a contract personally to do work. Given that the Respondent was taking no part in the proceedings he was quite properly less ambitious about that proposition in his oral submissions than on paper.

 

  1. Nevertheless, he maintained it and I must address it. Of itself, I think the error cannot lead to the disposal which Mr Sadiq suggests.  It is not without significance that in Windle this Tribunal remitted the matter on the basis set out at paragraph 58 of the judgment.  Indeed, Mr Sadiq drew attention to it in his skeleton argument, albeit for a different purpose and in the different context of ground 2.  The terms of remission in Windle by this Tribunal to the Employment Tribunal for “further consideration” in effect required the Employment Tribunal to consider, eliminating lack of mutuality, its factual findings again in terms of the issues of subordination, integration and whether or not the provision of services was as part of an independent business undertaking.  There is no suggestion in the judgment of this Tribunal in Windle that this Tribunal should substitute its own view.  On the contrary, at the start of paragraph 58 HHJ Clark refers to the Court of Appeal guidance in Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 920.  At paragraph 21 of the judgment in that case Laws LJ says this:

“21. I must confess with great respect to some difficulty with the “plainly and unarguably right” test elaborated in the Dobie case.  It is not the task of the Employment Appeal Tribunal to decide what result is “right” on the merits.  That decision is for the employment tribunal, the industrial jury.  The appeal tribunal’s function is (and is only) to see that the employment tribunals’ decisions are lawfully made.  If therefore the appeal tribunal detects a legal error by the employment tribunal, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the appeal tribunal is able to conclude what it must have been.  In neither case is the appeal tribunal to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the employment tribunal, supplemented (if at all) only by undisputed or indisputable facts.  Otherwise, there must be a remittal.”

 

  1. The reference to “Dobie” is to the judgment of the Court of Appeal in Dobie v Burns International Security Services (UK) Ltd [1984] EWCA Civ 11, [1984] ICR 812, which until Jafri had been used frequently as a platform in this Tribunal for submissions that, pursuant to the statutory power given to this Tribunal by section 35 (1) (a) of the Employment Tribunals Act 1996 to “exercise any of the powers of the body … from whom the appeal was brought”, this Tribunal should substitute its own decision for that of the Employment Tribunal. The other case referred to by HHJ Clark at paragraph 58 of Windle -the Court of Appeal decision in Burrell v Micheldever Tyre Services Ltd [2014] EWCA Civ 716 – supports Jafri, albeit with somewhat restrained enthusiasm.

 

  1. Mr Sadiq’s submission is made not under what I can call “limb (a)” (in terms of the analysis of Laws LJ set out above) but under “limb (b)”. Given that the error in the instant appeal is exactly the opposite error to that in Windle (i.e. excluding mutuality, as opposed to including it) it seems to me, by parity of reasoning with HHJ Clark in Windle, the obvious conclusion must be that the disposal of the instant appeal should be similar to that in Windle, i.e. that the disposal should be by remission for reconsideration by the Employment Tribunal.  I should add that leaving aside the example of Windle, as a matter of considering whether this was a “limb (b)” situation, my conclusion would be that it is definitely not.  It seems to me paragraph 23 of the judgment of Underhill LJ in the Court of Appeal in Windle not only highlights the error made there but emphasises the link between the various different considerations.  The modern expression “holistic” may be overworked but the various matters that need to be considered in answering section 83(2)(a) are interlinked and formed part of the whole and, to that extent, the decision maker is engaged in looking at the matter “holistically”.  It is, as Sir Terence Etherton MR made clear in Pimlico Plumbers, an “evaluative “ judgment; paragraphs 66 and 94 of that judgment, when read together, explain the task facing the Employment Tribunal in cases like the present and the correct approach to it:

“66. In the context of the legislation relevant to this appeal, a distinction is to be drawn between (1) persons employed under a contract of service; (2) persons who are self-employed, carrying on a profession or a business undertaking on their own account, and who enter into contracts with clients or customers to provide work or services for them; and (3) persons who are self-employed and provide their services as part of a profession or business undertaking carried on by someone else: cf. Lady Hale in the Bates van Winkelhof case at [25] and [31].  The persons in (3) fall within section 230(3)(b) of the ERA and regulation 2 of the [Working Time Regulations 1998] and their employment falls within the definition of “employment” in section 83(2)(a) of the [EqA].  I shall for convenience refer to them as a “limb (b) worker”.  The question on this appeal is whether the ET was wrong to decide that Mr Smith was a limb (b) worker rather than falling within category (2).

  1. In deciding whether a worker is a limb (b) worker or falls within the second category in paragraph 66 above, the ET carries out an evaluative exercise, with an intense focus on all the relevant facts: Hashwani v Jivraj [2011] UKSC 40, [2011] 1CR 1004 at [34]. There is no single touchstone, such as whether there is a relationship of subordination of one party to another, for resolving the issue: Bates van Winkelhof at [39]. Subordination might, nevertheless, be relevant, as might be such factors as whether there are a number of discrete separate engagements, whether obligations continue during the breaks in work engagements (sometimes called an “umbrella contract”), and also the extent to which the claimant has been integrated into the respondent’s business: Windle v Secretary of State for Justice [2016] EWCA Civ 459, [2016] ICR 721; Halawi v WDFG UK Ltd; James v Redcats (Brands) Ltd [2007] ICR 1006.”

 

  1. If one factor is wrongly eliminated, as is the case here, it seems to me that the whole thing needs to be looked at again. The essential question is whether it should be looked at again by Employment Judge Slater?  In order to determine that I need to consider the other grounds of appeal including the original ground 1

 

  1. Going back then to Mr Sadiq’s other submission in relation to ground 1, as described above at paragraph 27 and 28 of this judgment, he complained that Employment Judge Slater failed to explain why absence of holiday or sick pay and performance appraisal were not significant factors in making what is a multifactorial decision. Other factors such as the finding of self-employment and the contractual statements relating to it in clause 11.5 of the ISA had been effectively ignored.  As set out in the ground of appeal and expanded in the oral submissions I would not regard this as compelling either as a challenge on the basis of inadequacy of explanation, leaving aside whether that is open on the terms of the grounds of appeal, which may be questionable, or as a challenge to her analysis, which, although I might well not have adopted myself, is probably very much a question of fact.

 

  1. What I do accept, however, is Mr Sadiq’s submission that these matters might well have been decided differently had the ground 1a error not been made. So even if they might not be compelling when looked at in isolation, when I consider the whole picture I need to take these matters into account in deciding how to dispose of the appeal.  I will consider the other grounds and then deal with all grounds together, including this one.

 

  1. Ground 2 complains of a failure on the part of Employment Judge Slater to consider whether the Respondent was a “professional” and the Appellant was his “client”. But as the matter is developed in the ground it becomes clear the real complaint is that the conclusion to the contrary reached by her at paragraph 68 of the Written Reasons is inadequately reasoned.  Ground 4 makes similar points in relation to the issue as to the extent to which the Respondent can be said to have been integrated into the Appellant’s corporate entity.  Ground 5 relies on misdirection and perversity in connection with subordination.  Each of these grounds, as well as ground 1, makes reference to the factual situation and the conclusions on those facts in one or other of the preceding Employment Tribunal decisions in connection with the Appellant (I include Windle in this general description, although, as I explained earlier, Windle involves different parties and some different facts).  To an extent therefore ground 3 is relevant to all other grounds and I propose to consider it and then return to grounds 2, 4 and 5.

 

  1. Ground 3 complains that Employment Judge Slater failed to consider the decisions in Windle, Awan, Khan and Chet or, if she did, failed to give adequate reasons for rejecting them as applicable. It is not arguable that she failed to consider these other decisions.  She clearly did so at paragraph 70 of the Written Reasons, the pertinent parts of which I have set out above at paragraph 25 of this Judgment.  The real complaint is that she never sought to analyse them or distinguish them.  In other words although she was prepared to afford them respect she did not find it necessary to consider their reasoning.  At its height Mr Sadiq’s submission on ground 3 was that these decisions had a persuasive effect, which Employment Judge Slater had wrongly refused to recognise.  He referred to the judgment of a division of this Tribunal presided over by Singh J in the Lock case (see above at paragraph 22 of this Judgment).  He relied upon paragraph 75 in which Singh J summarised the principles of “stare decisis” (if I may be forgiven for using the Latin expression) as they apply to one division of this Tribunal considering the decision of another division of this Tribunal on the same or an allied topic.  Previous decisions of this Tribunal are of persuasive authority, by which I mean that they will be followed unless the exceptions set out by Singh J in paragraph 75 apply.  Mr Sadiq submitted I should also apply that by analogy in relation to previous decisions of Employment Tribunals on the same point and particularly on the same factual matrix.

 

  1. I do not accept that proposition can apply on questions of fact unless issues of res judicata As I explained at the outset, it seems to me issues based on that doctrine cannot arise in the Windle case and in any event have not been advanced as part of this appeal in connection with any of these cases.  Even where the facts may be the same as in another case and also one of the parties is the same, the finding of facts by any one Employment Tribunal is the task of that Tribunal and cannot be influenced by the outcome in other Tribunals.  This emerges clearly from what were known at the time as “the school dinner ladies’ claims”, which related to alteration of terms and conditions of employment by a variety of Local Education Authorities in the early 1980s.  All but one of the claims were unsuccessful.  The claim which succeeded was that of Mrs Gilham and her colleagues against Kent County Council and in the second of two appeals to the Court of Appeal, Gilham and others v Kent County Council (No.2) [1985] ICR 233, one of the points raised was that the case was factually the same as, or at least very similar to, other claims which had failed and, therefore, that it could be inferred that the Industrial Tribunal must have misdirected itself.  Griffiths LJ said this at page 240A-C:

“The facts were of course not identical in the two cases, but the issue was undoubtedly broadly the same, namely whether the councils were acting unfairly because they dismissed school meals staff in order to impose upon them new and less favourable conditions of service in breach of the national conditions, for the purpose of effecting economies in their budgets.  In very carefully reasoned decisions both these industrial tribunals concluded that the need to effect economies was a “substantial reason”, and that the local authority had acted reasonably in regarding it as a sufficient reason for dismissals.

Mr Harvey therefore submits that those decisions are a powerful indication of this tribunal must have misdirected itself in law in order to arrive at an opposite conclusion.  This court must not allow itself to be seduced by this beguiling argument. …”

 

  1. Nor do I think the position can be any different in terms of legal analysis and interpretation. Like the Magistrates’ Court and also the County Court, the Employment Tribunal is an inferior tribunal.  I do not use that expression in the pejorative sense but simply to place it in the hierarchy of courts and tribunals.  I think it can be said that judgments of any kind at any level can be regarded as “persuasive” in the sense that one might wish to pay attention to the reasoning involved but I take the view that they are not “persuasive” in the same way that judgments of superior courts, such as the High Court of Justice, and, for that matter, this Tribunal, are “persuasive”.  Previous decisions at that level should be followed unless there is good reason not to do so.  But at the level of the Magistrates Court, the County Court and the Employment Tribunal there is no obligation to follow the decisions of other courts and tribunals of the same or equivalent status, although, no doubt, judicial comity and collegiality would suggest that they be considered and afforded proper respect.

 

  1. It might have been better, perhaps, for Employment Judge Slater to have given some indication as to how she thought the instant case differed from the others and/or as to why the reasoning in those cases did not appeal to her. But in my view her failure to do so does not amount to an error of law.  Paragraph 70 of her Written Reasons indicates that she was cognisant of the other cases and she said expressly that whilst she afforded them respect she had reached her own factual conclusions.  In my judgment she was entitled to do so and ground 3 cannot succeed on the basis that it was an error of law for the Employment Judge Slater not to have followed either the factual findings or the legal reasoning of the earlier cases in the Employment Tribunal.

 

  1. But, repeating the way Langstaff J puts it in the appeal in the Chet case, the Judgment and Written Reasons of Employment Judge Holmes at first instance in that case represents “a conscientious, careful and often thoughtful contribution to the field”. Even though Employment Judge Slater could not have been aware of that opinion, having myself read the Written Reasons in the Chet case, it seems to me that no one also taking the time to do so could possibly disagree with the former President’s characterisation of them.  I am bound to say I find it more than a little disconcerting that reasoning of that character is not more fully discussed by Employment Judge Slater in her Written Reasons.  Whilst her failure to do so, taken in isolation, cannot be described as an error of law, her lack of engagement with the previous decisions seems to me to be part of a bigger picture that I ought to take into account in deciding on the disposal of this appeal.

 

  1. With that in mind, I turn back to consider further grounds 1, 2, 4, and 5. Each criticises a different facet of the reasoning process by which Employment Judge Slater concluded that the Respondent was employed within the meaning of section 83(2)(a) of the EqA.  The first observation that springs to mind when stepping back and looking at the overall picture is that this is not an area of law where proceeding by analogy is likely to produce a clear analysis.  That a Judge has been found to be a worker is by no means a sound guide as to whether an interpreter whose degree of integration and subordination are entirely different must also be so.  The same reservation holds good for doctors and arbitrators.  I should make clear that Employment Judge Slater took her cue from the judgment of this Tribunal presided over by HHJ Clark in Windle but at the risk of offending against judicial comity I am bound to say that I do not think that to say that if a Judge can be a worker then so can an interpreter proves very much toward answering the question as to whether the interpreter’s contract with Capital amounted to a contract personally to do work.

 

  1. Much will depend on the interpretation and the practical application of the contract entered into between the Claimant and the Respondent. Of course, there are similarities between a Recorder and an interpreter; both work in a court; both act in accordance with an oath; both must exercise professional skill (in accordance with established ethical principles, whether set out in a code, or otherwise) in relation the discharge of the functions of their respective offices.  But there are very significant differences.  The court process is controlled by the Judge not by the Appellant.  The court or tribunal is in a particular place, starts at a particular time and keeps particular hours but this is not dictated by the Appellant but rather by HMCTS and even that may well be subject to the control of the Judge, as an independent officer under the Crown, which the interpreter is not.  Analogies can be misleading and the conclusion reached in one case in respect of one profession under one contractual arrangement may not be applicable in another case involving another profession under another contractual arrangement even though the place of work may be common to both.

 

  1. My second observation is that the rather neat conclusion in the last sentence of paragraph 68 of the Written Reasons (see above at paragraph 25 of this Judgment) may call for considerable factual re-examination. This is because it can only be stated with such confidence that all other work amounts to is “a number of part-time “jobs”” if the law is that periods when a Claimant is not working for the Respondent is irrelevant to mutuality of obligation.  But that is not the law and, despite Underhill LJ’s cautionary note that Pimlico Plumbers is really only an exercise in contractual construction in a particular factual matrix, I am inclined to think that paragraph 145 of his judgment, which reads:

“145. Second, although the argument before the ET and before us was couched in terms of whether Mr Smith was subject to a legal obligation to work (or be available) for a minimum number of hours, it should not be assumed that if there had been no such obligation the evidence about what hours he worked in practice would have been irrelevant.  It is necessary to distinguish two separate circumstances in which the issue of whether a putative employee/worker is engaged on a casual basis might arise.  The first is where the substantive claim directly depends on their enjoying employee/worker status in respect of their periods of work (e.g. because the claim concerns their pay or some discriminatory treatment in the workplace).  In such a case the question whether the engagement is casual is indeed relevant, but only on the basis that it may shed light on the nature of the relationship while the work in question is being done (see Quashie v Stringfellow Restaurants Ltd [2002] EWCA Civ 1735, [2013] IRLR 99, at paras. 10-13, and Windle at paras. 22-25).  But it is not only legal obligations that may shed light of that kind.  If the position were that in practice the putative employee/worker was regularly offered and regularly accepted work from the same employer, so that he or she worked pretty well continuously, that might weigh in favour of a conclusion that while working he or she had (at least) worker status, even if the contract clearly (and genuinely) provided that there was no legal obligation either way in between the periods of work.  The second situation is where the claim directly depends on the claimant’s status during periods of non-work, either because he or she has to establish continuity of employment or because the claim itself relates to their treatment during that period: in such a case mutuality of legal obligations is essential.”

 

contains much food for thought on the relevance of “a number of part-time “jobs”” both on the nature of the Claimant’s status when doing the work (Underhill LJ’s first circumstance) and on the significance of his actual complaint of discrimination and whether it is about him not working as opposed to working (Underhill LJ’s second circumstance).  Whichever way one looks at it, I think a good deal of further factual investigation may be necessary.

 

  1. I have already accepted that there has been a significant error of law arising out of new ground 1(a) of the grounds of appeal. On the other hand I do not accept that ground 3 raises an error of law, although the failure to explain the distinction between this case and other cases decided differently, Chet in particular, obscures rather than illuminates the decision reached here.  To my mind the lack of clarity there is connected to the other grounds, which I might not be inclined to treat as made out individually, and, although taken together they raise an anxiety as to the correctness of the decision made by the Employment Tribunal even then might not of themselves amount to an error of law, nevertheless without a correct approach to mutuality of obligation I think it is impossible to know whether the right perspective has been adopted.  With some regret, because Employment Judge Slater has devoted considerable effort to this case, I must allow the appeal on ground 1(a) but direct that the matter be re-heard and the factual matrix be re-explored in accordance with the correct view of the law stated by the Court of Appeal in both Windle and now in Pimlico Plumbers in so far as parts of the judgments there might have any bearing on this case and, as I have indicated above I think that they might, although of course that will be for the Employment Tribunal hearing the case.  After some hesitation I have concluded that should not be Employment Judge Slater.  As I have endeavoured to make clear she is blameless but I think, balancing all the factors in paragraph 46 of the judgment of a division this Tribunal presided over by Burton J in Sinclair Roche & Temperley v Heard and another [2004] IRLR 763, and particularly having regard to the need for further factual investigation using a different legal perspective, the matter should be remitted to a differently constituted Employment Tribunal.

 

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