Autoclenz addresses a commonly-encountered conundrum. When deciding whether an individual is an employee, how much attention should the courts pay to the contract he or she has signed, and how much to what actually happens on the ground? The Supreme Court said that you look at everything, but that the reality of the situation will trump what the contract says. So in this case the employment tribunal had been entitled to disregard some provisions in the agreement that car valeters had been asked to sign. Out of context, those provisions would have indicated they were self-employed, but they did not reflect how the arrangements worked in practice, which clearly indicated an employment relationship.
Jivraj was a dispute with more unusual facts. It was about the validity of an arbitration clause in an commercial agreement that stipulated that the arbitrator should have a particular religious affiliation. This was potentially in breach of the Religion or Belief Regulations, but only if an arbitrator was an employee for these purposes. The Regulations (and the Equality Act which has now replaced them) cover not just employees in the strict sense, but also individuals engaged under a contract “personally to do any work”. The Court of Appeal had thought that this extended definition was wide enough to catch arbitrators, given the personal nature of their work, but the Supreme Court disagreed. It was not enough to look at the nature of the work; for the definition to be satisfied that work had to be done under the direction of the other party to the contract. Given that arbitrators acted independently from the parties appointing them (and indeed could not do their job effectively otherwise) they could not be regarded as employees for these purposes.
These decisions make an interesting pairing. There is a wide gulf between low-paid car-valeters and an arbitrator appointed under an international commercial agreement. Putting legal analysis to one side and looking at the underlying facts, it is perhaps not surprising that the Supreme Court decided to extend employment-related rights to cover the former but not the latter.