When trying to decide whether a claimant is an employee, a worker or a self-employed contractor, the Employment Appeal Tribunal (EAT) has held in Capita Translations and Interpreting Ltd v Siauciunas and anor that it is an error of law for tribunals not to consider the doctrine of mutuality of obligation.
Basic facts
In 2011, the Ministry of Justice entered into a framework agreement with Applied Language Solutions Limited which was then acquired by Capita Translations to provide interpreters as and when required by courts and tribunals. Mr Siauciunas (an interpreter registered with Capita as a Lithuanian speaker) was told by Capita about vacancies for particular appointments.
Once appointed the interpreter entered into an Interpreting Services Agreement (ISA) which required them to abide by a certain dress code, among other things. They were paid by the day without any provision for holiday pay, sick pay or pension and were responsible for their own tax.
Mr Siauciunas complained that he had been subjected to less favourable treatment when compared to Russian language interpreters by reason of his race and his religious or philosophical beliefs. However, the tribunal first had to decide if he was an employee, a worker or a self-employed contractor under section 83(2)(a) of the Equality Act 2010.
The Equality Act
Section 83(2)(a) states that employment means: “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”.
Tribunal decision
The tribunal judge held that there was a contract between Mr Siauciunas and Capita when he was engaged to carry out an assignment, the terms of which were set out in the ISA. However, the lack of mutuality of obligation (an obligation on Capita to offer him work and an obligation on him to accept) between assignments was not relevant to determine if he was in employment under S83(2)(a).
When carrying out the assignment, he was in a position of subordination in that he had to go where he was assigned at the appointed time, comply with the code of professional conduct, wear certain types of clothing and provide the service personally. If Capita had concerns about an interpreter, they could 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.
Although Mr Siauciunas did not work exclusively for Capita, this did not make him “a truly independent provider of services to the world” but reflected the reality that he had a number of part-time “jobs”. The judge concluded he was under a contract to personally do the work.
EAT decision
Noting the decision of the Court of Appeal in Windle v Secretary of State for Justice (LELR 475), the EAT held that the tribunal judge had misdirected herself in law when she had failed to consider whether there was mutuality of obligation between contracts where there was a contract personally to do the work. However, she could not be criticised for the error as the decision was given after she had made her judgment.
The EAT concluded that, as a result of that error of law and the need for further factual investigation, the matter should be remitted to a differently constituted tribunal for re-hearing.
Finally, the EAT made clear that the doctrine of precedent (that previous decisions are “persuasive” and should be followed unless there is good reason not to) does not apply to decisions of employment tribunals even when they relate to similar factual situations and even when the factual situation is almost identical. Instead, each tribunal must decide cases based on its own findings of fact and its own interpretation of the law.
Comment
This is yet another decision about employment status. It is also a reminder that each case is dependent on its particular facts and no one test is determinative.