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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 20 MAR 2017

Is time between work assignments relevant to establishing employment status?

Is time between work assignments relevant to establishing employment status?
Jessica Scott-Dye
Associate,
Veale Wasbrough Vizards

In the recent case of Capita Translation and Interpreting Limited v Siauciunas the Employment Appeal Tribunal (EAT) has confirmed that the time spent between work assignments...


... as well as the time spent working, is relevant to an individual's employment status.

The Facts

Mr Siauciunas, was a Lithuanian interpreter registered with Capita Translation and Interpreting Ltd. He was working within the HM Courts Service on an assignment-by-assignment basis. Between assignments there was no obligation on the company to offer work, or for Mr Siauciunas to accept work (lack of mutuality). However, once an assignment had been offered and accepted, Mr Siauciunas would be under an obligation to complete that assignment.

Mr Siauciunas brought a discrimination claim in the Employment Tribunal (ET). As part of the claim, the ET found that Mr Siauciunas was an ‘employee’ under the Equality Act 2010, as he personally provided services. The ET further held that the lack of mutuality was not relevant to establishing employment status. This followed the EAT's decision in the case of Windle v SoS for Justice. Mr Siauciunas appealed the ET's decision.


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The Court of Appeal's Decision

The Court of Appeal (CoA) had overturned the decision in Windle after the ET had found in favour of Mr Siauciunas, noting that a lack of mutuality of obligation between assignments would be relevant when considering employment status under the EqA. The EAT therefore also found that the ET was mistaken in disregarding the lack of mutuality when considering Mr Siauciunas'employment status.

The CoA's decision in Windle impacted directly on the appeal in this case. The EAT therefore directed that the case should be re-heard by the ET.

Best Practice

This case highlights the ability of an appeal in one case to change the direction of another.

In addition, the case clarifies a useful rule for employers and employees to bear in mind when considering an individual's employment status: namely that as well as considering the time spent during work assignments, thought should be given to the nature of the relationship between the parties between assignments. In order to avoid any dispute arising in matters such as these, employers should ensure that appropriate contractual documentation is issued and adhered to, in order to regulate all worker relationships.
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