17 March 2017 #Employment
The Equality Act 2010, which sets out the legal protections against discrimination, defines employment as “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.”
In the discrimination case of Capita Translation v Siauciunas, Mr. Siauciunas was an interpreter registered with Capita working within the HM Courts Service via a framework agreement to provide his services on an assignment by assignment basis.
The Employment Tribunal found that Mr. Siauciunas was an ‘employee’ by the Equality Act definition. This was because he personally provided services and because a lack of obligation between assignments for Capita to provide work to him and for him to accept work was not relevant to employment status under the Equality Act test.
Capita appealed, arguing that a lack of mutuality of obligation between assignments was relevant when determining employment status. Offers for work could be, and on the facts were, declined and Mr. Siauciunas had never committed himself or been obliged to commit himself to work exclusively for Capita.
The Employment Appeal Tribunal (‘EAT’) agreed with Capita. Therefore, the appeal succeeded with the case being sent back to a new Employment Tribunal for further factual investigation.
The EAT’s Judgment follows a series of high-profile employment status cases, demonstrating how fine the distinctions can be when determining employment status under the different tests for discrimination, unfair dismissal and tax.
Businesses are well advised to look at the working relationships in practice and not just on paper when considering their liabilities in this complex area. For further assistance, please contact our employment team.