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Is a lack of mutuality of obligation between assignments relevant to the test for employment status under s.83(2)(a) of the Equality Act 2010?

Yes, held the EAT in Capita Translation v Siauciunas.

The Claimant was an interpreter working with the Respondent within HM Courts Service under a framework agreement on an assignment-by-assignment basis. In considering employment status for the Claimant's discrimination claim, the employment tribunal found that he was an 'employee' under the Equality Act, as he personally did work, a lack of mutuality of obligation between assignments was not relevant, and following the EAT decision in Windle v SoS for Justice (a case also involving court interpreters).

After the employment tribunal's judgment, the Court of Appeal overturned the EAT's decision in Windle, noting that a lack of mutuality of obligation between assignments would be relevant to employment status under the broad Equality Act test. Therefore the appeal succeeded, the case being remitted to a new employment tribunal.

The EAT noted that there was no reason for an employment tribunal to regard a decision on essentially the same facts in another employment tribunal as 'persuasive' or to be followed, unlike the situation in the EAT.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.