The Supreme Court has confirmed that the employment status of an individual will be determined by the reality of their relationship with the employer.  Contractual clauses indicating self-employment, such as allowing substitution or the refusal of work offered, will be disregarded if they do not reflect the actual legal obligations of the parties (determined by assessing the written terms, the parties' behaviour in practice and their expectations).  The Court rejected the contention that express terms can only be disregarded if they had been used with a common intention to mislead. (Autoclenz v Belcher, SC)

The Supreme Court has also ruled that arbitrators are not employed 'under a contract personally to do work' and so are not covered by discrimination law.   The Supreme Court ruled that the test requires that the individual does work under the direction of the other party to the contract.  Arbitrators are independent providers of services and not in a relationship of subordination.  Our Herbert Smith arbitration ebulletin discusses the case in more detail. (Jivraj v Hashwani, SC)