Discrimination claim fails because claimants ‘were not employees’

A racial discrimination claim has failed after the Court of Appeal ruled that the claimants involved could not be classed as employees.

The case involved a group of people who provided services to the Courts and Tribunals Service (HMCTS) on a case-by-case basis.

They also worked for other institutions. HMCTS was under no obligation to offer them work, and they were under no obligation to accept it when offered. They were only paid for work done, with no provision for holiday pay, sick pay or pension.

They considered themselves as self-employed, and were treated as such for tax purposes. In 2012, they brought proceedings against the Ministry of Justice for racial discrimination contrary to the Equality Act 2010 (the Act).

The Employment Tribunal rejected their claim on the grounds that they could not be classed as employees for the purposes of the Act because of the ad hoc nature of the services they provided. There was no mutual obligation between them and the HMCTS and they were not in a subordinate position.

The claimants appealed, arguing that they were employees because they were acting “”under direction””, or were in a “”subordinate”” position while at work.

The case went all the way to the Court of Appeal, which upheld the tribunal’s decision. It said that as a matter of common sense, the fact that a person was supplying services on an assignment-by-assignment basis indicated a degree of independence that was incompatible with employee status.

Please contact Jackie Cuneen if you would like more information about the issues raised in this article or any aspect of employment law.