A race discrimination claim brought by two interpreters engaged by the courts and tribunals service has given the Employment Appeal Tribunal another opportunity to clarify the law on employment status.

Discrimination claims can be brought either by employees in the true sense, or by a person in “employment” under a “contract personally to do work”. In this case the interpreters argued that they fell within the second limb of the definition. When dealing with these types of claims the EAT said that, among other things, tribunals must look at:

  • whether the workers provided their services in a position of subordination; and
  • whether, on those occasions, they were integrated into the employer’s organisation, or whether they provided those services as part of an independent business undertaking.

Particularly in today’s flexible labour market, it is proving very difficult to draw the line between:

  • employees in the strict sense, who benefit from the full range of employment rights;
  • workers, with access to an extensive but more limited set of rights; and
  • those who do not provide services on a personal basis, but as part of a business, who generally have no employment rights, at least as regards the organisation to which their services are supplied.

We do not yet know whether the interpreters will be placed in the second or third category, as the case has been sent back to the employment tribunal for them to look at the issue again. We have however had final decisions recently in litigation involving a range of different occupations including football referees, plastic surgeons, limited liability partners and arbitrators.

This uncertainty has been a problem not only for employers and potential claimants, but also for the judiciary. There have been five cases in the last few years where the Supreme Court has reached a different view on employment status from that of the lower courts. That may be partly what has prompted the Government last week to embark on a review of employment status. But short of extending the same group of rights to every individual in a direct contractual relationship with the user of his or her services, there appears to be no easy solution.