1. Section 83(2) of the EqA reads:

"(2) "Employment" means -

(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; …"

Obviously there was no question of the Respondent being employed under a contract of apprenticeship and Employment Judge Slater concluded that he was not employed under a contract of employment (see paragraph 60 of the Written Reasons) and that has not been challenged by the Respondent. Unlike other Employment Tribunals, however, she concluded that he was an employee because there was a contract that he was personally to do work. The issue is did she err in law in reaching that conclusion? In order to answer that one must pose the further question - how did she arrive at that conclusion?

1. The Respondent is a Lithuanian speaker of Lithuanian origin who had been registered with the Appellant as an interpreter for about 2 years. He then complained that by reason of the protected characteristics of his race and of his religious or philosophical beliefs he had been subjected to less favourable treatment when compared to interpreters of the Russian language (see paragraph 17 of the Written Reasons). In 2012 or possibly 2011 (the earlier date appearing at paragraph 18 of the Written Reasons although the latter date had been given in both Windle and Chet) the Appellant entered into what has been called a "Framework Agreement" ("FA") with the MOJ to provide the services of interpreters to courts and tribunals administered by a Department of the MOJ, namely Her Majesty's Courts and Tribunal's Service ("HMCTS").

1. As a result of the Respondent being registered with the Appellant he would be informed of vacancies for any particular appointment as an interpreter in any particular case by e-mail, by text message or by telephone. Employment Judge Slater described this process as being "offers" of "the job" (see paragraph 23 of the Written Reasons). Such notifications might also be sent to others on the register, who were suitably qualified to act as interpreters in the particular case. Where more than one recipient of such a notification responded positively indicating a wish to be appointed, the Appellant would choose who should be appointed.

1. Employment Judge Slater says this at paragraph 25 of the Written Reasons:

"25. There is no obligation on the First Respondent to offer work to any interpreter. There is no obligation on an interpreter to accept any job offered."

I am not entirely clear from the Written Reasons whether, if any such recipient indicated a willingness to be appointed, then the Respondent was obliged to appoint. Employment Judge Slater seems to me not to have made a clear finding as to that unless the first sentence of paragraph 25, as quoted above, is to be interpreted as such a finding. Be that as it may, she did find that once the Respondent confirmed the appointment then the interpreter was obliged to attend at the time notified to the interpreter by the relevant court administration (see paragraph 26 of the Written Reasons).

1. The specific agreement that Employment Judge Slater found had been arrived at between the interpreter and the Appellant upon appointment was governed by the terms set out in the Interpreting Services Agreement ("ISA") (see paragraph 27 of the Written Reasons). Having considered the terms of the ISA and examples of how clause 11.8 of the ISA, which precluded the interpreter from assigning, subcontracting or transferring the duties of interpretation in any particular case without consent, operated in practice, she concluded that the practice was that the interpreter might suggest a substitute. Such a proposed substitute might be registered with the Appellant already and in such circumstances the Appellant would then "release" the first interpreter and appoint the substitute (see paragraph 31 of the Written Reasons). If the substitute was not registered then, providing adequate time existed to complete the necessary checks before the duties of interpretation were due to start, then such a non-registered substitute might be considered (see also paragraph 31 of the Written Reasons). Also she found that late cancellation might be allowed in some circumstances but the interpreter cancelling the appointment might thereby be liable to suffer a financial penalty. Likewise failure to attend court at the appointed time and on the appointed day might also result in a penalty (see paragraph 32 of the Written Reasons). There was no disciplinary procedure, as such, but the Appellant could sanction the interpreter's conduct by giving a warning, by suspension or by simply not using the interpreter in future (see paragraph 40 of the Written Reasons).

1. Such equipment as was necessary to carry out the task of interpretation was to be provided by the interpreter (see paragraph 34 of the Written Reasons). The only stipulation as to how the interpretation was to be carried out was that the ISA required the interpreter to comply with the provisions of the Interpreter Code of Professional Conduct (see paragraph 32 of the Written Reasons). This included requirements as to dress. There was also an "Interpreter Handbook" published by the Appellant and this gave guidance on how certain situations that might be encountered whilst carrying out duties as an interpreter should be handled.

1. The interpreter was subject to the self-employed taxation regime of schedule D and by clause 11.5 the ISA stated both that the interpreter was solely responsible for his or her taxation liabilities and that the ISA was not to be construed as having the effect of creating the relationship of employer or employee or worker or contractor between the interpreter and the Appellant and furthermore that the interpreter should not hold himself or herself out as such. Remuneration for the services performed by the interpreter was paid by the day without any provision for holiday pay, sick pay or pension (see paragraph 37 of the Written Reasons).

1. In directing herself as to the law, Employment Judge Slater considered section 83(2)(a) of the EqA. She referred herself to the judgment of the Supreme Court in Jivraj v Hashwani [2011] ICR 1004, concentrating particularly on the terms of the judgment given by Lord Clark. Part of his judgment was based on an analysis of the distinction, which had been made by the European Court of Justice ("ECJ") in Allonby v Accrington & Rossendale College [2004] IRLR 224, between the concept of a "worker" and "an independent providers of services", concepts which were relevant to Article 141 (1) of the Treaty of Rome (subsequently Article 157 of the Treaty on the Functioning of the European Union as consolidated pursuant to the Treaty of Lisbon). These were concepts which Lord Clark regarded as being equally applicable to section 83(2)(a) EqA. By paragraph 67 of its judgment in Allonby the ECJ described a worker as being "a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration". By contrast there were those who were "independent providers of services who are not in a relationship of subordination with the person who receives the services" (see paragraph 68 of the ECJ judgment in Allonby). In the judgment of Lord Clarke in Jivraj v Hashwani such a distinction was equally applicable to the interpretation of the statutory phrase "a contract personally to do work" which is found in section 83(2)(a) of the EqA (see paragraph 27 of his judgment). This led Lord Clarke to reach the conclusion that although the arbitrator in Jivraj v Hashwani:

"40. … may be providing services for the purposes of VAT and he of course receives fees for his work, and although he renders personal services which he cannot delegate, he does not perform those services or earn his fees for and under the direction of the parties as contemplated in para 67 of Allonby. He is rather in the category of an independent provider of services who is not in a relationship of subordination with the parties who receive his services, as described in para 68."

1. By contrast, however, Employment Judge Slater noted that in [O'Brien v MOJ ]()[2013] IRLR 315 the Supreme Court had held that a part-time Judge was a "worker" citing the remarks of the then President of this Tribunal, Langstaff J, in [Halawi v WDFG UK Ltd t/a World Duty Free]() UKEAT/0166/13:

"37. … His job would by the principles established in Hashwani and in Allonby have been to ask whether a person performed services for and under the direction of another person, looking therefore to control the flipside of which in large part is subordination, and would have to do so by having regard to all the factors and circumstances. … The absence of control over the Claimant feeds into the issue of subordination. …"

To that passage Employment Judge Slater added the following passage from paragraph 4 of the judgment of Arden LJ in the same case in the Court of Appeal ([2014] EWCA Civ):

"4. … The criteria include a requirement that the putative employee should agree personally to perform services, and a requirement that the putative employee should be subordinate to the employer, that is, generally be bound to act on the employer's instructions. …"

Employment Judge Slater also considered the judgment of a division of this Tribunal presided over by HHJ Clark in Windle v Secretary of State for Justice [2014] IRLR 914. She refers specifically to paragraph 24 of the judgment, which accepted the proposition that there is "no material difference" between the definitions of a "worker" in the ERA and what HHJ Clark called "the category (b) EqA employee".

1. She also found paragraph 31 of the judgment in Windle to be compelling enough to cite part of it:

"31. The picture which is emerging from the cases is that a distinction must be drawn between those who market their services to the world in general and those who work in a subordinate position in circumstances where they are integrated into the business of the putative employer. …"

1. She also emphasised at paragraph 52 of the Written Reasons, but did not quote, paragraph 54 of the judgment of HHJ Clark summarising it as deciding "that lack of mutuality between engagements was relevant to the question whether there was a contract of employment but not to the question of whether there was a contract personally to do work". I think it would enable a better understanding of her conclusions and reasoning if I set out now the whole of paragraph 54.

1. It reads:

"54. In the course of argument Mr Sheldon maintained his position that a lack of mutuality between engagements was relevant not only to the contract of employment question but also the separate question of employment under a contract personally to do work. We disagree. In our judgment that lack of mutuality is relevant to the former and not to the latter. In rejecting Mr Sheldon's submission we have concluded that the employment tribunal fell into error, taking into account, at paragraph 164, an irrelevant factor when considering the category (b) employee question. It was relevant to the contract of employment question, as to which the employment tribunal correctly found that these claimants were not employed under contracts of employment."

Employment Judge Slater's Judgment and Written Reasons were sent to the parties on 15 February 2016 by which time the Court of Appeal had heard argument on the appeal against the decision of HHJ Clark's division of this Tribunal, which appeal only challenged the above conclusion. Judgment allowing the appeal on that single point was not given until May 2016. It will need to be discussed later in this Judgment.

1. Employment Judge Slater did, however, think it appropriate at paragraph 53 of the Written Reasons to quote part of paragraph 55 of the judgment of HHJ Clark. In fact she omitted only one sentence and, later in the paragraph, a small part of another. The latter omission is of no significance but I have included the omitted sentence below (in square brackets and italics) so as to give the complete picture of what is under discussion. Paragraph 55 reads in full:

"55. That is not to say, on a separate point, that what the claimants did when not working for the respondent is irrelevant to the category (b) question. It is for the employment tribunal to determine whether these claimants provided their services under a position of subordination to the respondent or whether they were truly independent providers of services to the world at large and the respondent was but one of their professional clients. [As to that, Mr Sheldon rightly points to the employment tribunal's findings at paragraph 128, noting that they did not provide their services to the respondent with the exclusivity with which Dr Westwood provided his hair restoration services to HMG.] However, a lack of exclusivity is not of itself determinative. It is for the ET to consider all relevant factors to determine the question of subordination identified by the Supreme Court in Hashwani and considered by the employment tribunal at paragraph 170. It will also be necessary to make a clear finding as to whether, when carrying out assignments for the respondent, the claimants were integrated into the HMCTS organisation … The fact that they exercised their own professional judgment (subject to directions contained in the HMCTS Handbook) is not fatal to category (b) employee status. Dr Westwood was not told what advice he should give his patients in order to restore a full head of hair; nor were Mr O'Brien and Ms Price told how to decide the cases which came in front of them, for the purposes of determining whether they were 'workers' other than employees under a contract of employment."

1. Employment Judge Slater reached her conclusions on the issue in this appeal starting at paragraph 61 of the Written Reasons putting the question that she had to decide in these terms:

"61. … This leaves the issue as to whether the claimant had a contract with the First Respondent personally to do work. The issue must be examined in relation to the individual assignments. As Windle confirms, the lack of mutuality of obligation between assignments is not relevant to whether there is a contract personally to do work in relation to an assignment."

So she nailed her colours firmly to the mast of the reasoning of HHJ Clark's division of this Tribunal in Windle.

1. At paragraph 62 of the Written Reasons she concluded that self-employment and the lack of holiday or sick pay and performance appraisal were not factors preventing the Claimant from being an employee within the meaning of the EqA. She said:

"62. … factors which would be relevant to determining whether the claimant was employed under a contract of employment … do not assist with whether he had a contract personally to do work."

Her reasoning continues at paragraph 63:

"63. There is clearly a contract between the claimant and the First Respondent when the claimant is engaged for an assignment. The Interpreting Services Agreement sets out the terms of the agreement."

and this must lead to her conclusion at paragraph 64 "… that there is an obligation on the claimant to provide the interpreting services personally".

1. She found that there was no power of substitution (presumably drawing on the factual conclusions reached at paragraph 31 of the Written Reasons) and said at paragraph 65 this left only the issue of:

"65. … whether the claimant was an independent supplier of services not in a relationship of subordination with the First respondent, such that the contract between the claimant and the First Respondent is to be considered, in accordance with applicable case law, as not being a contract personally to do work."

1. In the following paragraphs (paragraphs 66 to 68 of the Written Reasons) she answers that question as follows:

"66. I conclude that the claimant, when carrying out an assignment, was in a position of subordination with the First Respondent. He had to go where he was assigned to go at the appointed time. The First Respondent required him to act in accordance with the directions of the Second Respondent as to the tasks he was required to perform on arrival at a court. He was required to comply with the First Respondent's Code of Professional Conduct. This sets out what are described as fundamental provisions that Capita expects their interpreters to follow. These include acting impartially, not giving advice to the person to whom they are interpreting and not entering into discussion with them (other than for stated limited purposes) and interpreting to the best of their ability. There are prohibitions on wearing certain types of clothing. If the First Respondent has concerns about an interpreter e.g. if they are consistently late for jobs, they may give them a warning, suspend them from taking jobs for a period or stop using their services completely in accordance with the written sanctions policy. The First Respondent does not otherwise tell the claimant how he should do the job of interpreting, but this is no different to the level of control that would be exercised over any professional interpreter who had a contract of employment. Similarly, as Judge Peter Clark held in Windle, judges and a medical practitioner have been held to be "workers", a definition which the EAT said was not materially different to the definition of an employee under the Equality Act 2010, despite their "employers" not telling them how to perform their professional functions. The reality is that many skilled professionals employed under contracts of employment have no more control exercised over how they carry out their professional functions than the First Respondent exercised over how the claimant carried out his interpreting work whilst on an assignment. The claimant was in a very different position vis-à-vis the First Respondent when carrying out an assignment to that of an arbitrator vis-à-vis the parties to an arbitration. The arbitrator is not in a position of subordination to the parties to the arbitration. I conclude that the claimant was in a position of subordination to the First Respondent.

67. I conclude that, whilst carrying out assignments, the claimant was integrated into the First Respondent's organisation to the extent any interpreter sent out by the respondent to perform an assignment would be, even if they were employed by the First Respondent under a contract of employment.

68. The claimant did not provide services exclusively to the respondent. He also provided interpreting services for other organisations. This lack of exclusivity is a relevant factor but is not determinative of the question whether he had a contract personally to do work. I do not consider that the claimant's relationship with the First Respondent was analogous to the relationship of a solicitor or barrister or tradesman with one of their clients. These are examples of truly independent providers of services to the world. I do not consider that the claimant was a truly independent provider of services to the world in the sense referred to in Windle. The fact that he provided his services to a number of other organisations does not make him a truly independent provider of services to the world. Rather, he had a number of part-time "jobs"."

1. Finally, Employment Judge Slater acknowledged at paragraph 70 that other Judges at first instance had reached different conclusions in "cases relating to the same working arrangements for interpreters with the First Respondent". Whilst she treated "their decisions with the greatest respect" she had reached her own conclusions "applying the law to the facts".

1. There are five grounds of appeal, which can be summarised as follows:

i. the Employment Tribunal failed to take relevant factors into account when considering section 83(2)(a) of the EqA;

ii. the Employment Tribunal failed to consider the impact of the relationship between the Appellant and the Respondent in the context of section 83(2)(a) of the EqA;

iii. the Employment Tribunal failed to consider prior decisions on the same facts and/or rejected them without giving adequate reasons for doing so;

iv. the Employment Tribunal failed to make findings of fact relating to the issue of integration and/or accepted that the Respondent was integrated into the business of the Appellant without giving adequate reasons for doing so;

v. the Employment Tribunal misdirected itself as to subordination and/or reached a decision on subordination that no reasonable tribunal properly directing itself on the factual evidence could have reached (i.e. perversity).

1. In relation to ground 1 Mr Sadiq complained that Employment Judge Slater failed to explain why absence of holiday or sick pay and performance appraisal was not significant in relation to deciding whether the Respondent was employed pursuant to a contract personally to do work as required in the alternative formulation in section 83(2)(a) of the EqA. He referred to paragraph 53 of the judgment of a division of this Tribunal presided over by the then President, Langstaff J in Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, who, in a well-known passage, described the essential difference between somebody "actively marketing his services as an independent person to the world" and somebody "recruited by the principal to work for that principal as an integral part of the [business]". As had been emphasised by the judgment of the Court of Appeal in Windle (see paragraph 23) any decision in relation to section 83(2)(a) of the EqA involved consideration of all the circumstances.

1. In other words the decision to be made was multifactorial but Employment Judge Slater had ignored significant findings (e.g. the finding of self-employment, the finding of provision by the Respondent to others on the basis of self-employment, that the provisions of clause 11.5 of the ISA, to which the Respondent had bound himself, clearly set out that there was no employer/employee relationship and that there was no mutuality of obligation). Moreover as well as ignoring her own findings, Employment Judge Slater had failed to appreciate other important facts namely, that the "Interpreters Book" referred to the interpreters as "freelance suppliers", the process of engagement involved little more than registration of production of the necessary qualifications, that offers of work could be, and on the facts were, declined and that the Respondent had never committed himself or been obliged to commit himself to work exclusively for the Appellant.

1. Finally, in this context, although it might be thought that this is the more fundamental point, Mr Sadiq submitted that Employment Judge Slater had misdirected herself in law by relying on the correctness of paragraph 54 of the judgment of a division of this Tribunal presided over by HHJ Clark. It is a point raised in his skeleton argument but not, as it seems to me, one raised by the existing terms of ground 1 of the grounds of appeal. Paragraph 54, set out above at paragraph 19 of this Judgment, asserted the irrelevance of any lack of mutuality of obligation in the period between engagements. It was the sole subject of the appeal to the Court of Appeal in Windle and the proposition was rejected at paragraph 23 of the judgment of Underhill LJ, which in effect was the judgment of the Court of Appeal, in these terms:

"23. … I accept of course that the ultimate question must be the nature of the relationship during the period that the work is being done. But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it. It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or a lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense. Of course it will not always do so, nor did the employment tribunal so suggest. Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances."

Thus, Mr Sadiq submitted, the case had been decided at first instance, by deliberately excluding consideration of what should have been regarded as a very significant factor. This submission is somewhat strengthened by what the Court of Appeal said in Pimlico Plumbers. Windle is mentioned, without reservation, by Sir Terence Etherton MR and by Underhill LJ in their respective judgments and at paragraph 145 of his judgment Underhill LJ specifically refers to paragraphs 22 to 25 of his judgment in Windle as representing the law on the issue of mutuality of obligation during periods when the Claimant is not working. Finally, on ground 1, Mr Sadiq submitted in his skeleton argument that if I accepted the proposition that there was a clear error of law then I might be in a position to decide the case myself.

1. Mr Sadiq developed the second ground of appeal by reference to the terms of the remission back to the Employment Tribunal by this Tribunal in the Windle case. Of course, that remission was rendered otiose by the Court of Appeal overturning the judgment of this Tribunal. Nevertheless Mr Sadiq relied upon it as being instructive as to what was at issue in cases of this kind. In Windle this Tribunal had sent the case back for consideration as to whether the interpreters provided their services to HMCTS "as their client or customer as part of an independent business undertaking" (see paragraph 58 of the judgment). This reflected the fact that, as was recognised in Windle (see paragraph 27 of the judgment), authority at the highest level has accepted that for all intents and purposes the concepts involved in section 83(2)(a) of the EqA and in section 230(3)(b) of the Employment Rights Act 1996 ("ERA") are, despite the more extensive language of the latter, essentially the same (see Jivraj v Hashwani (cited above) and Bates van Winkelhof v Clyde & Co LLP.

1. That being so, it follows it was necessary to consider whether the Respondent was in a client relationship with the Appellant to whom he was providing professional services. Significantly, submitted Mr Sadiq, this was an alternative finding by Employment Judge Holmes in the Chet case (see paragraph 59 of the Written Reasons in that case) and although the upholding of that finding by this Tribunal was essentially obiter dictum because this Tribunal refused to consider points not argued below, it was important to recognise the appeal in Chet had been dismissed in terms supportive of that interpretation of the factual matrix in Chet, which was identical to that in the instant case.

1. This brings me to the third of Mr Sadiq's submissions, namely that Employment Judge Slater had, in effect, ignored the three previous cases of Awan, Khan and Chet. Moreover, Employment Judge Slater also makes no reference at all to the case of Windle. He has referred me to the judgment of a division of this Tribunal presided over by Singh J in Lock v British Gas Trading Ltd (No.2) [2016] IRLR 316. Paragraph 75 of his judgment sets out the principles applicable where a division of this Tribunal is considering departing from earlier decision at this level. At the very least, submitted Mr Sadiq, Employment Judge Slater was obliged to explain why the conclusions reached in the three cases of Awan, Khan and Chet were not applicable in this case on her analysis.

1. Ground 4 complains about the conclusion that the Respondent was integrated into the business of the Appellant during the course of fulfilling each engagement. The complaints are about the quality of the evidence, the nature of the reasoning process and the adequacy of the stated reasons. As to the quality of the evidence, as with ground 1 Mr Sadiq complained about the lack of evidence relating to employed interpreters and the assumption that the work of interpretation in a court or tribunal would have precisely the same character as it would if the Respondent had been employed. Mr Sadiq attacked this as a meaningless comparison and one not based on any evidence at all. Moreover it ignored the facts as found, namely that the Appellant provided no equipment, that interpreters were free to work for other organisations, that interpreters were not subject to discipline and that the points made by Employment Judge Holmes in paragraph 58 of the Written Reasons in the Chet case appear never been considered at all or, at least, have not been distinguished or differentiated in the Written Reasons in the instant case.

1. Ground 5 alleges a misdirection on the issue of subordination. The findings of Employment Judge Slater are set out at paragraph 66 of the Written Reasons and it is not contended that the Employment Judge Slater was unaware of the right approach to subordination because she had referred to it at paragraph 48 of the Written reasons by quoting what was in fact paragraph 37 of the judgment of a division of this Tribunal presided over by Langstaff J in the case of Halawi.

1. So far so good; where it had gone wrong, however, was in the application of that test to the factual findings. These amounted to no more than the Respondent being required to attend appropriately dressed and on time at the designated court or tribunal and act professionally as an interpreter, in the knowledge that if he did not then he might be liable to certain contractually provided sanctions. In themselves these were very slight factual foundations upon which to base the concept of subordination. Moreover they ignored the lack of mutuality of obligation, which had been wrongly dismissed on the basis that it was not relevant, and the fact that there was no control whatsoever by the Appellant on what happened at court. An expectation of adherence to professional standards was the most that could be said but that fell far short of the exercise of control.

1. The conclusion reached by Employment Judge Slater never explained why other Judges had been wrong to reach the opposite conclusion on the same factual matrix and never explained why the limited degree of control that she found existed in any way distinguished the circumstances of the Respondent from that of any other professional person providing the services to an end-user through an intermediary. This was either a perverse decision or one that was inadequately explained.