The Court of Appeal has overturned a decision of the EAT in Secretary of State for Justice -v- Windle and Arada 2016. The absence of an ‘umbrella contract’ is a relevant factor when deciding if someone is ‘in employment’ for the purposes of the Equality Act 2010.

Mr Windle and Mr Arada were on the National Register of Public Service Interpreters and frequently worked for HMCTS. The written terms for each assignment provided no guarantee of work and no obligation to accept work, and they were treated as self-employed for tax purposes. Both Claimants brought claims for race discrimination, and had to establish that they were employed under a contract “personally to do work” within the meaning of section 82(3) Equality Act 2010.

The Tribunal held that they were not “in employment” as there was no mutuality of obligation between each separate engagement, i.e. no ‘umbrella contract’. The EAT disagreed, holding that the absence of mutuality of obligation between assignments was an irrelevant factor.

The Court of Appeal disagreed. Although the test here was whether an individual was employed under a contract personally to do work, the factors to be considered were the same as those to be considered in the assessment of whether someone is an employee. While the nature of the relationship during the assignment is the most important factor, what happens between assignments can also be a relevant factor to consider.

The test under the Equality Act 2010 is intended to be more inclusive and a lower threshold than the usual test for employment status. It is therefore interesting that the Court has decided here that the same factors are relevant in both tests.