Today, in the case of Secretary of State for Justice v. Windle and Arada [2016] EWCA Civ 459, the Court of Appeal (Underhill LJ giving judgment) decided that Court and Tribunal interpreters are not employees for the purposes of pursuing claims under the Equality Act 2010. In doing so, the Court overturned a decision of the Employment Appeal Tribunal (presided over by HHJ Peter Clark) [2015] ICR 156, and restored the judgment of the Leeds Employment Tribunal.
The case concerned professional interpreters working for the Courts and Tribunals on multiple engagements, with no overriding or ‘umbrella’ contract of employment. The appeal was concerned with whether the professional interpreters could be classified as ‘employees’ for Equality Act purposes for each engagement. The appeal turned on a narrow question: whether an employment tribunal could take into account the fact that in between assignments there was an ‘absence of mutuality of obligations’. The EAT had held that this was impermissible.
Lord Justice Underhill allowed the appeal, stating that when determining the employment status of an individual it is ‘necessary to consider all the circumstances’: see §23. Excluding consideration of the absence of mutuality between engagements ‘in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.’
Furthermore, Underhill LJ explained at §23, ‘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 lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense.’
The same point had been made by Elias LJ in Quashie v. Stringfellows Restaurant Ltd.[2012] EWCA Civ 1735, in respect of employment status for unfair dismissal claims. Underhill LJ explained that there was no reason to apply a different approach when looking at the question of employment status in ‘the extended sense’ under the Equality Act.
Clive Sheldon KC of 11KBW represented the Secretary of State for Justice on the appeal.
