Case law: Contractors couldn't bring discrimination claim because there was no 'mutuality' between assignments
Employers should consider carefully whether their relationship with people working for them on an assignment basis creates 'mutuality of obligation' between them, in between assignments. If it does, there is a risk that those workers are employees and can therefore bring discrimination claims.
This update was published in Legal Alert - July 2016
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Two translators worked for HM Courts and Tribunals Service ('HMCTS') on an assignment by assignment basis. HMCTS was not required to offer them assignments and, if it did, they were not required to accept them, ie there was no 'mutuality of obligation'. If the translators did accept work, they were paid for it but they were not entitled to holiday pay, sick pay or pension. They were considered (and considered themselves) self-employed for tax purposes.
However, when they found that other translators were being paid on a different basis they argued they were employees, and therefore entitled to bring a race discrimination claim. They argued that they were employees because their contracts required them to do the necessary work personally – they could not substitute anyone else to do that work for them. In addition, during assignments they worked under the direction of HMCTS rather than on their own initiative.
The Court of Appeal said the main issue was what the relationship between the two parties was during each assignment. However, it said that what happened between assignments was also a relevant factor which could shed light on the relationship between the parties. In this case, each assignment stood alone – there was no 'umbrella' contract which provided for mutuality of obligation between assignments.
The Court found that working on an assignment by assignment basis is more likely to imply that a person has a degree of independence in their work, which is not compatible with being an employee. The translators were not therefore employees, and could not bring a race discrimination claim.
- Employers should consider carefully whether their relationship with people working for them on an assignment basis creates mutuality of obligation between them between assignments because, if it does, they risk those workers being able to bring discrimination claims
Case ref: Secretary of State for Justice v Windle and Arada  EWCA Civ 459
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