United Kingdom Employment Appeal Tribunal

EMPLOYMENT TRIBUNALS

First Claimant: Dr Z Windle
Second Claimant: Miss M Szwarckopf
Third Claimant: Mr F Arada

First Respondent: The Chief Constable of West Yorkshire Police
Second Respondent: Secretary of State for Justice

Heard at:
Leeds
On: 7 and 8 January 2013, 18 February 2013, 25 March 2013

Before: Employment Judge Starr

Members:
Ms R M Dass, JP
Mr T A Lyons

Representation

Claimants: In Person
First Respondent: Mr Mallett, Counsel
Second Respondent: Mr C Sheldon, Queen's Counsel

RESERVED JUDGMENT AT A PRE-HEARING REVIEW

The claims of each Claimant are struck out as the Tribunal has no jurisdiction to hear them. The Claimants were not employees of the First or Second Respondent for the purposes of the Equality Act 2010.

REASONS
1. The issues for the Employment Tribunal were set out in the notice of pre- hearing review (PHR) as follows:

a. Whether the Claimants were within the "employment" of a Respondent within the meaning of section 83 of the Equality Act 2010, either before or after the implementation of the Framework Agreement in November 2011 and if before that date whether it was for the duration of particular assignments only;

b. Whether to order the Claimant(s) to pay a deposit (not exceeding £500) if it seems that any contentions put forward by that party have little reasonable prospect of success;

c. Whether to strike out all or part of the claim(s) because they have no reasonable prospect of success.

2. The Respondents before us each made clear at the outset that they did not seek deposit orders.
3. In brief, each Claimant alleges race discrimination and harassment related to his or her race. Dr Windle presented three ET1 claim forms, Mr Arada two and Ms Szwarckopf one. Ms Szwarckopf additionally indicated that she relied on religion or belief discrimination. All of the claims rely on Part 5 of the Equality Act 2010. Claims under sections 39 and 41 of that Part engage the definition of employment in section 83 (in the case of section 41, by s.41(5)(a)). On 9 November 2012 the tribunal ordered the claims to be heard together.
4. The parties had prepared skeleton arguments in advance of the hearing on 7 and 8 January 2013 which the tribunal had had the opportunity to consider. We heard evidence over those two days from each Claimant and from Mr Preston for the First Respondent and Mr Palmer for the Second Respondent. We accepted in evidence the written statement of Ms Horner for the Second Respondent whom none of the Claimants wished to cross-examine. We had a bundle of documents, referred to by page numbers below. At the end of the evidence, the Claimants and the Second Respondent urged the tribunal to allow time for detailed submissions which, in their view, could not properly be made then. By agreement, the tribunal directed that there be two rounds of written submissions followed by a half day of time-limited oral submissions in final closing of the parties' respective cases for the purposes of this PHR. That took place on 18 February and the tribunal deliberated during the remainder of that day and during a further half day on 25 March 2013.
5. The three Claimants presented their cases primarily through Dr Windle. Mr Arada and Ms Szwarckopf made additional comments and submissions where they felt that was required. Each Claimant made clear that their own case should be judged individually on its own merits notwithstanding that the cases had been consolidated for hearing together. The Tribunal has done that.

The facts

Background

6. The First Respondent is responsible for the police service of West Yorkshire. The First Respondent and the police service are not part of the Second Respondent. They are legally distinct. The Crown Prosecution Service (CPS) is a further distinct legal entity.
7. The Second Respondent is responsible for the Courts Service and Tribunals Service, which is now a merged service.
8. The National Register of Public Service Interpreters is a non-profit body for interpreters. Each of the Claimants was a member of NRPSI. It operates a register, described below.
9. The Claimants in these cases were affected by a change in the procurement of public service interpreting services which the government introduced during 2011. Ms Horner explained in her written statement, and we accept, that the Second Respondent decided to outsource responsibility for the provision of interpreting services under a new "Framework Agreement", pursuant to which the justice sector now obtains the services of translators and interpreters. The Second Respondent signed the Framework Agreement on 23 August 2011 with Applied Language Solutions (ALS, now owned by Capita) which became operative on 31 January 2012. The Ministry of Justice signed a contract with ALS on 31 October 2011. The selection and engagement of interpreters is now arranged for those for whom the Second Respondent is responsible by ALS / Capita.
10. As Mr Preston said in his written statement, and we accept, from 28 November 2011 the process for requesting and obtaining interpreter services by the First Respondent altered when it signed its contract with ALS.
11. These cases arise out of the Claimants' perception that the new arrangements were unfair and race discriminatory. Fees, allowances and terms and conditions were affected. The race discrimination allegation refers to an alleged discrepancy in treatment on racial grounds between the Claimants and British Sign Language Interpreters, whose terms and conditions were not affected as the Claimants' were.
12. On principle, each Claimant refused to pay the required fee and register with ALS and each has accordingly had no, or almost no, work from the Respondents since the introduction of the Framework Agreement.

Prior to the Framework Agreement - general

13. . The First Respondent used to engage interpreters using the NRPSI.
14. Until about April 2011 the NRPSI register was open to view only by those public sector organisations who had a licence to view it. From April 2011 the register has been open to view by anybody, without a licence. The Second Respondent characterised the NRPSI as a kind of Yellow Pages for public sector organisations. The Claimants took offence at that description on grounds of their professional status. They also described the NRPSI as an "anti-marketing" device, on the basis that given search criteria would call up a competitive field of interpreters. Dr Windle went so far as to say that she objected to NRPSI being made publicly available online, and said that she did not want to be contactable. We find on the basis of the evidence that the NRPSI was not primarily a marketing tool but a quality assurance mechanism; it enabled users to verify that an individual was a professional interpreter.
15. Typically a police officer would contact the Crime Input Bureau call centre and explain what kind of interpreter was needed. The bureau staff would look on NRPSI for an interpreter. Contact would be made by the police with the interpreter and an assignment provided, at the end of which a form FIN 51 (an example of which we had at page 436) would be completed to show which interpreter had attended, when and where, on what assignment and for how long. The form provided for assessment of the interpreter as "very good", "satisfactory" or "poor". The form was then used internally to instruct payment after an assignment.
16. Mr Preston's evidence was that the First Respondent would call interpreters in such a way as to rotate so as to be fair in the distribution of work amongst interpreters of a particular language operating in a particular location. Dr Windle said, and we accept, that Bradford Central police station maintained a book which had numbers in it, including hers, from which they would call her to allocate an assignment. We find that the rotational use of interpreters by the First Respondent was more an aspiration than the consistent practice and that known and trusted interpreters such as Dr Windle might realistically expect more work.
17. Prior to the Framework Agreement arrangements under the Second Respondent's responsibility differed according to jurisdiction, with the magistrates and crown court listing offices contacting interpreters directly using the NRPSI and the Tribunals Service operating its own panel of interpreters. The former decided to whom to offer an assignment based on proximity. The latter based selection for a job on skill points, cost, suitability and availability.

Interpreting

18. We heard evidence about the work of court, tribunal and police station interpreting. The core of the role is to act as a conduit between the suspect or witness and the fact-finders so as to enable communication between people using different languages. We find that in so doing, an interpreter exercises impartially their skill and judgment. To interpret well requires a deep cultural and linguistic knowledge. An example in the bundle in relation to interpreting for the Second Respondent was that an interpreter will alert a court or tribunal to a missed cultural inference. There are different methods of interpreting, touched on below.

Dr Windle

19. Dr Windle is a professional interpreter and translator between Czech and Slovak and English. She is Czech by nationality, ethnicity and mother tongue.
20. Dr Windle worked for the Tribunals Service and the Courts Service and for West Yorkshire Police from early 2003.
21. Between January 2003 and August 2012 Dr Windle carried out around 1,160 assignments directly for the First Respondent and a further 500 assignments instructed by West Yorkshire police but carried out for West Yorkshire magistrates courts and the Crown Prosecution Service.
22. Dr Windle estimated, and we accept, that she completed around 1,000 assignments for the Second Respondent.
23. She also worked for agencies administered by the National Health Service, for criminal defence solicitors (including occasions when they contacted her directly) and for local bodies such as Leeds Language Link and Wakefield Language Services. Dr Windle worked for the CPS approximately once a year. Around 10% of her work over the last decade was for South Yorkshire Police.
24. Dr Windle said in evidence that she "practically lived at Bradford Central police station". She did not have a desk or telephone there, although there was a room made available to interpreters. We find that most of her work was for the First Respondent and a large part of her work was for the Second Respondent but, although the work for those Respondents combined comprised the great majority of her work, she did not work exclusively for either (or both) and was not required by either respondent to do so.
25. Although Dr Windle maintained that all of her work was for agencies in the criminal justice sector, and was "part of the same process", it is wrong to suggest that her work was for the same employer; it was not, and the entities listed above comprise a range of independent providers of her work.

Dr Windle and the First Respondent

26. The First Respondent operated no panel although we have found that Bradford Central police station maintained its own book with details of Dr Windle. The offer of assignments for Dr Windle for the First Respondent came through the call centre using the NRPSI or from the police station staff using their book. Offers were made by telephone in each case. We find that the relevant contract for each assignment for Dr Windle (and for Ms Szwarckopf) was oral, evidenced in writing by the FIN 51, dealing with the key terms of the assignment as discussed above.
27. Dr Windle argued that the NRPSI Code at page 577 constituted terms of contract between her and the First Respondent. We find that it did not. The police call centre identified interpreters from the NRPSI register but there was no evidence of incorporation of the NRPSI Code into contracts with Dr Windle or Ms Szwarckopf either in the way that the call centre communicated or the way that the local police communicated with the interpreters.
28. We heard evidence and accept that each interpreting assignment with a suspect at a police station carried with it an obligation to attend to give evidence in court about the police station interview. The assistance that Dr Windle was obliged to provide after the end of the immediate interpreting assignment extended to appearing as a witness for the prosecution where she had interpreted for a suspect, until completion of any prosecution of that suspect.
29. There was no negotiation of rates of pay, which were fixed.
30. There was no sick pay, holiday pay or pension offered by the First Respondent or sought by Dr Windle. No training was provided by the First Respondent.
31. There was a system of appraising each assignment. Dr Windle would be rated "very good", "satisfactory" or "poor" in relation to each assignment.
32. There was no induction process or interview conducted by the First Respondent. The First Respondent did not issue terms and conditions or a handbook although interpreters understood that they should adhere to their NRPSI Code.
33. The NRPSI Code did not include restrictions or instructions on the appropriate method of interpreting. It contained no- provisions for written warnings or suspension. There was no formal process for performance management and no dress code. The First Respondent did not seek to impose any of these things. We accept Mr Preston's evidence that interpreters were not subject to the personal development reviews of employed staff of the First Respondent.
34. All equipment needed was provided by the First Respondent, including pens and paper, tapes and tape machines.
35. Dr Windle's movements in a police station were controlled. She had to show identification to gain entry. During an interview, she had to do what she was told by the responsible officer save in terms of her core interpreting work. To that extent, we accept her evidence that the First Respondent "controlled" her.
36. The First Respondent included Dr Windle on its payroll database and paid her by BACS transfer on a self-employed basis for tax.

Dr Windle and the Second Respondent

37. On 1 October 2002 Dr Windle submitted an application for the post of a Tribunals Service interpreter. On 9 October 2002 she received an invitation to attend an interview with the Interpreter Expansion Team but on 15 November 2002 was told by the Interpreting Services Team Leader that she would not have to attend since she held the DPSI (a diploma in public service interpreting) in Czech and Slovak. Dr Windle attended a mandatory assessment and training programme on 16 December 2002 and received a certificate stating that she had met the required standard expected by the then Immigration Appellate Authority for court interpreting. On 14 January 2003 the IAA wrote to Dr Windle stating that they were: "Pleased to inform and confirm that you have been provisionally included on the IAA panel of Freelance Interpreters."
38. The Tribunals Service accordingly operated its own register of panelists to whom assignments were offered. Since her inclusion on the Tribunals Service's own internal register, Dr Windle has appeared there under interpreter number 185187. Offers of work came from the Tribunals Service by letter to Dr Windle.
39. Dr Windle's interpreting services for the Tribunals Service and the Courts Service were governed by terms and conditions of service (at page 1/320 for the Tribunals Service and 2/760 for the Courts Service). Dr Windle accepted, and we find, that those were terms of contract between Dr Windle (and indeed Mr Arada) and the relevant service for which the Second Respondent was responsible,
40. The terms and conditions of service for both the Tribunals Service and the Courts Service provided that there was no guarantee of any work. They provided that Dr Windle was responsible for making her own tax and national insurance arrangements. There were no provisions for holiday pay, sickness absence pay or for a civil service pension. Dr Windle never sought any such benefits or challenged the absence of those benefits.
41. Dr Windle suggested to us that she did not raise such matters as she did not wish to rock the boat. We do not accept that. We find that Dr Windle considered herself at the relevant times to be self-employed. We find that Dr Windle was treated by HMRC as self employed and treated herself as self- employed for tax purposes. There was contention over the association of Dr Windle with certain statements made by the Professional Interpreters Association (PIA). The PIA wrote to Mr Mason at the Ministry of Justice describing public sector interpreters as self employed professionals. Dr Windle and Mr Arada had been directors of the PIA and we accept the Second Respondent's submission that Dr Windle was a director of the PIA at the relevant time, which must have been before September 2011.
42. Above Dr Windle's and Mr Arada's names in the letter to Mr Mason was this passage at point 5 of the letter at page 128M (at N), and we find that this reflects the views held then by Dr Windle and Mr Arada: "The issue of protection of pay rates is of great importance in any industrial relations with the workforce, and especially so with public sector interpreters who are self- employed professionals, with no job security, no guaranteed income, unpredictable working patterns, no employer pension and no sick or holiday pay".
43. Tribunal Service panelists were provided with the Handbook for Freelance Interpreters, a version of which we had at page 276 onwards. The Second Respondent characterised this as a non-contractual policy document. We deal with that submission below. The Handbook provided in its introduction that by accepting a booking as a freelance interpreter on behalf of the Tribunals Service, the interpreter was also accepting the current terms and conditions of the service. The interpreter was also required to abide by any other reasonable instructions issued as policy by the Tribunal Service. Failure to meet the standards and duties set out in the handbook might lead to a refusal by the Tribunals Service to offer any further bookings. The handbook included the following: -

"Once you are successful with your application, the Tribunal Service will then be in a position to offer you bookings on an ad-hoc basis. You are not permitted to send anyone else to bookings on your behalf. If you do this it may result in you being removed from the panel."

44. In the field of court or tribunal interpreting, substitution is a criminal offence. We heard evidence and accept that an interpreter was prosecuted and convicted of sending a substitute to an assignment.
45. The Handbook also provided:

"As an interpreter, you are offered work by the Tribunal Service as and when the need arises on a self-employed basis. You are not an employee of the Tribunals Service and are therefore totally independent of the Tribunals Service. This handbook is not intended to constitute, imply or create a relationship of employment between you and the Tribunals Service.

All interpreters have self-employed status, therefore, all tax and national insurance issues are your own responsibility. The Tribunals Service will not make any income tax deductions from fees paid to you."

46. There was a repeat in the Handbook of the terms and conditions stipulating that there was no guarantee of work:

"As a self-employed Interpreter, you are under no obligation to accept any work, and have the right to refuse any bookings offered to you by the Tribunals Service. This will not prejudice future bookings with the Tribunals Service. As a freelance interpreter you are able to continue to work for other organisations."

47. The handbook provided: "At Hearings, the Judge/Chairman will decide when you can be released from the final Hearing from which you are assigned. Once released you should report immediately to an Interpreter Clerk, who will inform you where you may be, needed next or if you can be fully released to go home."
48. We heard evidence from Dr Windle and accept that interpreters were not free to leave a court after the assignment which they had accepted and had to remain in the building in case they were needed for another assignment, until being released by the relevant court staff.
49. The handbook set out the duty to be impartial and be seen by others to be impartial. We find that a duty of impartiality rested upon interpreters in courts, tribunals and police stations.
50. The handbook also set out a dress code requiring the visible wearing of an ID badge, the wearing by female interpreters of a dress, skirt or tailored trousers with a smart top and it set out a list of items not to be worn. Failure to comply with the dress code might result in a refusal of further bookings.
51. On page 17 of the handbook were instructions headed "Please do and please do not". Interpreting techniques were the subject of specific guidance (such as an instruction to whisper a simultaneous interpretation during opening statements and submissions). Interpreters were instructed to use the witnesses' exact words, speak slowly and clearly during consecutive interpreting, quietly when giving a simultaneous interpretation and to remain detached from the evidence being interpreted. Interpreters were told not to speak to a witness or appellant before or during a hearing except in the course of official duties unless the judiciary had given permission, not to use an English expression or phrase which was not an exact translation of the witness's own words, not to ask the witness what they meant by a particular answer and always to use direct speech. Dr Windle was able to intervene in tribunal or court proceedings in ways which, we find, amounted to the exercise of her professional skill and judgment as to whether each side had properly understood the other.
52. Fees were set out in the handbook as were rules on lunch breaks. Interpreters were warned that they may be held personally liable for mistakes in interpreting or where they caused delays and were advised to have adequate professional indemnity insurance cover. Dr Windle did not purchase professional indemnity cover.
53. The interpreters providing services to the Second Respondent were paid on a self-employed basis and did not have sick pay or holiday pay, or other benefits afforded to employees of the Second Respondent such as a civil service pension.
54. The Tribunals Service policy was for non-payment of fees or payment of reduced fees if a hearing was adjourned because an interpreter had arrived late or had to leave early or where a hearing started late. An interpreter at fault could adversely affect a trial. Three occasions of late attendance would lead to exclusion from bookings for 28 working days. Bookings cancelled by the interpreter would be reviewed and might result in a warning letter. Mr Palmer accepted in cross-examination that the Second Respondent in fact visited sanctions upon interpreters by way of reductions in fees for lateness or failure to attend upon an assignment. He also accepted, and we find, that the Tribunals Service managed interpreters' attendance and set professional standards of work and behaviour. He did not accept that the dress code was an order or instruction of the Second Respondent but that it was provided on an advisory basis. We disagree with that and find that the dress code was issued as mandatory direction, with specific content, on the matter of how an interpreter should dress for work.
55. In attending for an assignment for the Second Respondent, Dr Windle was given instructions including practical details such as the time and place of the assignment, as well as the method of interpreting required (for example, consecutive or simultaneous).
56. The bundle contained an image of the front and back of a badge which Dr Windle said she was issued with "like an employee". The badge had the words "Tribunal Service Interpreter" and a logo to the right of a photograph of Dr Windle and above the word "Interpreter". It stated: "Badge Number 1143" underneath the photograph and on the reverse had space for Dr Windle's signature. If Dr Windle's evidence was intended to suggest that employees of the Tribunal Service wear badges at work then, with no contrary evidence, we accept that. If the evidence was intended to go further and suggest that the issue of a badge was itself an act of the Second Respondent designating her as an employee, then we reject that inference. The evidence was that the badge was part of the security arrangements and to ensure that this was indeed a recognised interpreter.
57. There was contention over materia! in the bundle which Dr Windle and Mr Arada said made clear that they were employees. We accept Mr Palmer's explanation of the screen shots (pages 871- 872 and 955A-B) which Dr Windle and Mr Arada relied on, because these were screen shots of an internal system which Mr Palmer might be expected to know about, and Dr Windle and Mr Arada were not best placed to explain. Mr Palmer's explanation was that these were not payslips but screenshots of an internal database used for paying fee claims; that the term "employee number" appeared on the relevant page only as the label for the field in which a unique number was given to each person registered to receive a payment, in a system used for payments to employees and non-employees alike; that, contrary to the evidence of Dr Windle and Mr Arada, the field "normal / ad hoc" was a reference not to employee status but to whether payment was made within 2 months of the assignment or later than that. Another field required a choice to be made between freelance, agency or NRPSI and the Tribunals Service used the freelance option for Dr Windle and Mr Arada.
58. In February 2007 Dr Windle set up CZ Language Services Limited with her husband in order to diversify and do translations as well as interpreting. She was a director. She then realised that she could not do translations owing to severe neck pain. For a period of around two years, Dr Windle's company was VAT registered. In her response to a request for further information (1/128D, question 1), and initially in cross examination, Dr Windle stated that she had not been paid VAT by the Tribunals Service. This was incorrect. Dr Windle accepted before us that she had been paid VAT for employment tribunal work. She said in cross-examination, and we accept, that she asked for and received payment from the Tribunals Service and the Courts Service with VAT charged on around five occasions, for which she had to account to HMRC. We saw in the bundle a small sample of occasions when Dr Windle provided invoices to the Tribunals Service and the Courts Service in the name of CZ Language Services Ltd (pages 1/128E-H) and on those occasions sought payment through CZ Language Services Ltd.
59. On 27 June 2007 Dr Windle signed and returned to Christine Farmer of the Interpreter Services Team in Loughborough (part of the Tribunal Service) a further "terms and conditions agreement acceptance".
60. On 29 August 2008 Dr Windle performed interpreting services in Liverpool for which she invoiced the Secretary of State through, and on the letterhead of, CZ Language Services Limited, including VAT in the sum of £44.71.
61. The Second Respondent's staff included an interpreter manager. We accept Mr Palmer's evidence that that role was to manage the interpreter booking team, and to oversee arrangements for interpreters. Nonetheless, the interpreter manager did on occasion manage the interpreters.
62. On 19 August 2011 the interpreter service team wrote to Dr Windle and its other panel interpreters as follows: "We are aware of the recent protests by interpreters against the MoJ's decision to award a framework agreement to Applied Language Services. I am writing to remind you that as an Interpreter for HM Courts and Tribunals Service you are expected to provide a professional interpreting service for the bookings you have accepted and agreed to attend. Any intention to deliberately cause disruption at the hearing centres may lead to suspension or permanent removal from the panel. It is important for you to fully understand the implications of such actions, and necessary for interpreters to maintain a professional service at all times. We expect interpreters to act in accordance with the terms and conditions of the handbook."
63. In light of the last sentence above, and separately on account of the nature of the language of the handbook and the way in which it came to play a part in the relationship between the Tribunals Service and its panelists, we find that the handbook contained contractual terms binding as between the panelist and the Second Respondent in respect of work offered and accepted.
64. We accept Mr Palmer's evidence that interpreters for the Second Respondent (including Dr Windle and Mr Arada) were not managed in the same way as employees of the Second Respondent in that they were not in the performance management or appraisal system used for employees. There was an assessment of each assignment and repercussions if performance was poor. We saw at page 841 the interpreter performance sheet with its seven questions rating the interpreter's skills in different areas. Sue Hack suspended a panelist and it is evident from that that she had powers akin to the power of a line manager over an employee. Unlike employees, interpreters had no rights of appeal.
65. Dr Windle provided her own pens and paper for performing interpreting services for the Second Respondent, although pens and paper were available on request. Dr Windle did not have a Tribunals Service telephone number, or a dedicated desk. Dr Windle said in evidence and we accept that she did not advertise her services.
66. On 19 December 2011 Dr Windle received an email from Sue Hack, the interpreter booking and services manager, informing her that from 30 January 2012 the terms and conditions to which Dr Windle had agreed with the Secretary of State would change and that all future bookings would be made through Applied Language Solutions Limited (ALS). Dr Windle was advised to register with ALS.
67. This outsourcing of the government's interpreting requirements has been the subject of widespread comment which we do not need to deal with save to note that the Claimants in this case have made it their purpose to challenge the change. On 29 January 2012 Dr Windle wrote to the Secretary of State complaining about the new terms and conditions which she considered were discriminatory on grounds of race. Dr Windle refused to work through ALS. She has, since the beginning of 2012, worked only on a small number of occasions for the Second Respondent.

Mr Arada

68. Mr Arada was born in Algeria and speaks Arabic, French, Algerian and certain dialects.
69. He passed the Tribunals Service recruitment process and joined its panel in 2000. He was subject to the same contractual arrangements as Dr Windle.
70. Mr Arada interpreted for a range of work providers. In cross examination he explained, and we accept, that 80% of his work was for the Tribunals Service (mostly for what became known as the Asylum and Immigration Tribunal (AIT)), and the rest was for the magistrates courts (10%), and occasionally translation, or assisting a solicitor, or for the Crown Prosecution Service (10%). Mr Arada had also interpreted for Greater Manchester Police.
71. Mr Arada also had an interpreter's badge which he had to wear when interpreting for the Tribunals Service. He was issued with the same handbook as Dr Windle, and was subject to the same "Do's and don'ts". He was not allowed to send a substitute to any assignment.
72. Although the great majority of his time was spent on AIT work, Mr Arada did not provide an exclusive service to the Second Respondent, and was not required to be exclusive.
73. In cross examination, Mr Arada accepted that he was "freelance for tax and national insurance". He said: "I am free. I can provide work for who I want". He said "I am free not to do it" and that he was not' obliged to provide his services to the Tribunals Service and that the Tribunals Service was not obliged to provide him with any work. He also said that there were no repercussions if he said "no" to offers of work from the Tribunals Service but that he always tried to do each job offered and to help out where he could. We accept his evidence on these issues.
74. Mr Arada relied on an "inferred contractual obligation to call me first" but that was not supported in his evidence. He also said to us that he considered himself an employee and a worker of the Second Respondent but to the extent that that was intended as factual evidence of his state of mind at the time, we reject that evidence, which was inconsistent with the other evidence, including the letter to Mr Mason dealt with above.
75. In common with Dr Windle, Mr Arada was under no contractual obligation to accept assignments with the Tribunals Service. Mr Arada described that work as his "bread and butter", adored the work and interpreted practically every month for 13 years for the Second Respondent.
76. Mr Arada had business cards and used letter heading under the description of The Interpreters: Public Service Language Consultants'. Although that was in the plural, in fact it was Mr Arada's sole trader style and he had never employed anybody. The letterhead included "24 hour call out" and "Police & Court approved" wording at the top. Mr Arada used this letter heading when submitting invoices for interpreter training as well as in correspondence with the Tribunals Service and the Courts Service with respect to interpreter assignments. Mr Arada had a web domain, www.theinterpreters.org.uk, although he had not put up a website on that domain. He had business cards, which he said (and we accept) were initially created in response to requests from Greater Manchester police, for whom he was doing some work. He had subsequently given it out to barristers acting for suspects at court.
77. On 5 June 2011 Mr Arada sent an email to the interpreter services team at Loughborough, in which he reluctantly offered to reduce his claims for travel time. In cross-examination, he denied that this was to make his services more competitive as against those of other interpreters. We find that it was clearly done in response to pressure to reduce rates. We accept that Mr Arada did not consider that he was competing with his fellow interpreters and genuinely saw this as responding to official demands in order to maintain his level of bookings.

Ms Szwarckopf

78. Ms Szwarckopf is a Polish national with two Polish parents. Her mother tongue is Polish.
79. Ms Szwarckopf moved to the UK, initially living in the south west. She moved to West Yorkshire in 2010, passing her DPSI in June 2010 to become a professional public service interpreter. She contacted the First Respondent and learned of the NRPSI, overcoming a brain tumour to register on NRPSI by February 2011.
80. Between June and November 2011 Ms Szwarckopf earned approximately £6,000 working on 30 assignments for the First Respondent as an interpreter in police stations and courts. Her last assignment was on 25 November 2011.
81. In addition to the work above in the period June to November 2011 Ms Szwarckopf worked on four assignments for Leeds City Council and two court assignments. She saw herself as a community interpreter and was available for work from a range of public sector work providers including the probation service, health service, social services, housing services as well as local courts.
82. Although Ms Szwarckopf focused on obtaining work from the First Respondent, she accepted that there was no guarantee of work from it and no obligation on the First Respondent to give her any work at all. There were around 3000 assignments for interpreters of Polish in 2011. The First Respondent would find and offer Ms Szwarckopf work through the NRPSI on the basis of her proximity to the assignment.
83. In common with Dr Windle's relationship with the First Respondent, there was no negotiation of rates of pay. Ms Szwarckopf was assessed "very good", "satisfactory" or "poor" in relation to each assignment. She was directed when to be where and all her movements in a police station were controlled. The First Respondent included Ms Szwarckopf on its payroll database, giving her a unique number, CSZW002, and paid her by BACS transfer.
84. Ms Szwarckopf had no company and was not VAT registered.
85. She was self-employed in terms of her tax affairs and maintained her own personal indemnity insurance including in the period June to November 2011. Ms Szwarckopf denied having business cards in cross-examination but accepted that she had had cards printed, on white card and not bearing a logo, with her name, number and a web address which was hers, www.polish-and-enqlish.co.uk. She said that was because people had difficulty with her surname and that they were "to show West Yorkshire Police I am available and who I am". We accept this evidence and find that Ms Szwarckopf did not generally market herself using these business cards. The website, however, was clearly to let the justice sector know about Ms Szwarckopf and her services. It had been set up in December 2010. Ms Szwarckopf had letterhead which she used and we saw (at page 608) showing the NRPSI name across the top.

The parties' submissions

86. The parties each provided skeleton arguments, written closing submissions and written reply submissions (save for the First Respondent which did not serve a reply submission). The parties used their time on 18 February 2013 to take the tribunal through their written arguments. The submissions are not summarised here but the tribunal has carefully considered everything each party said, and we deal with the submissions in our discussion below.
87. The following cases were cited in submissions:

Allonby v. Accrington and Rossendale College [2004] EUECJ C-256/01

Jivrai v. Hashwani [2011] UKSC 40

J M Raulin v. Minister van Onderwiis en Wetenschappen. [1992] EUECJ C-357/89

Quashie v. String fellows Restaurants Ltd [2012] EWCA Civ 1735

Yorkshire Window Company Ltd v. Parkes UKEAT/0484/09, [2010] UKEAT 0484_09_2705

Prater v. Cornwall County Council [2006] 2 All ER 1013

Byrne Brothers (Formwork) Ltd v. Baird and others [2002] IRLR 96

Camden LBC v. Pegg UKEAT/0590/11/LA, [2012] UKEAT 0590_11_1304

Hospital Medical Group v. Westwood A2/2011/2529, [2012] EWCA Civ 1005

Suhail v. Herts Urgent Care [2012] UKEAT 0416_11_1411

Protectacoat Firthglow v. Sziiaavi [2009] EWCA Civ 98 (20 February 2009)

Deborah Lawrie-Blum v. Land Baden-Wurttemberg, R-66/85, [1986] EUECJ R-66/85

Cotswold Developments Construction Ltd v. Williams [2005] UKEAT 0457_05_2112

Vento v. the Chief Constable of West Yorkshire [2002] EWCA Civ 1871

Anvanwu v. South Bank Students' Union [2001] UKHL 14, [2001] IRLR 305

Osonnaya v. South. West Essex Primary Care Trust UKEAT/0629/11/SM, [2012] UKEAT 0629_11_2003

Case C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestriiding v. Firma Feryn NV, [2008] EUECJ C-54/07

Bettray v. Staatssecretaris van Justitie Case R-344/87, [1989] EUECJ R-344/87

Autoclenz Ltd v. Belcher & Ors [2011] UKSC 41

Alan McMeechan v. Secretary of State for Employment [1996] EWCA Civ 1166

White & Anor Troutbeck SA [2013] UKEAT 0177_12_2301

Ready Mixed Concrete (South East) Limited v. Minister of Pensions and National Insurance [1968] 2 QB 497

Clarkson v. Pensher Security Doors Ltd UKEAT/0107/09, [2009] UKEAT 0107_09_1606

QDOS Consulting Ltd & Ors v. Swanson (UKEAT/0495/11/RN), [2012] UKEAT 0495_11_1204

The law

Substantive law - "employment"

88. Section 83(2) of the Equality Act 2010 provides, in material part:

"Employment" means -

employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;...

89. Section 83(4) provides:

A reference to an employer or an employee, or to employing or being employed, is (subject to section 212(11)) to be read with subsections (2) and (3); and a reference to an employer also includes a reference to a person who has no employees but is seeking to employ one or more other persons.

90. In Jivrai v. Hashwani [2011] UKSC 40, [2011] ICR 1004, the Supreme Court considered materially identical wording to section 83(2) from the Employment Equality (Religion or Belief) Regulations 2003, as amended by the Equality Act 2006.
91. The Supreme Court referred to Allonby v. Accrington and Rossendale College [2004] IRLR 224, [2004] ICR 1328 before the European Court of Justice, where it was held:

67 For the purposes of that provision, there must be considered as a worker 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...

68... It is clear from that definition that the authors of the Treaty did not intend that the term "worker", within the meaning of article 141 (1) EC, should include independent providers of services who are not in a relationship of subordination with the person who receives the services..."

92. Lord Clarke explained in Jivraj v. Hashwani that the arbitrator provided his services pursuant to the contract between the arbitrator and the parties to the dispute and that the question in the case was whether such a contract provided for "employment under... a contract personally to do any work". He said (at paragraph 23): "There is in my opinion some significance in the fact that the definition does not simply refer to a contract to do work but to "employment under" such a contract. I would answer the question in the negative on the ground that the role of an arbitrator is not naturally described as employment under a contract personally to do work. That is because his role is not naturally described as one of employment at all. I appreciate that there is an element of circularity in that approach but the definition is of "employment" and this approach is consistent with the decided cases."
93. Lord Clarke further stated at paragraph 27:

"On the basis of those materials I would accept Mr Davies' submission that the Court of Justice draws a clear distinction between those who are, in substance, employed and those who are "independent providers of services who are not in a relationship of subordination with the person who receives the services". I see no reason why the same distinction should not be drawn for the purposes of the Regulations between those who are employed and those who are not notionally but genuinely self-employed".

94. At paragraph 30 Lord Clarke stated:

"Baroness Hale of Richmond referred at para 141 to para A[4] of Harvey on Industrial Relations and Employment Law, which stated that "the distinction is between those who work for themselves and those who work for others, regardless of the nature of the contract under which they are employed".

95. At paragraph 34 he stated:

"...The essential questions in each case are therefore those identified in paras 67 and 68 of Allonby [2004] ICR 1328, namely whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration, or on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services. Those are broad questions which depend upon the circumstances of the particular case. They depend upon a detailed consideration of the relationship between the parties. As I see it, that is what Baroness Hale meant when she said that the essential difference is between the employed and self-employed. The answer will depend upon an analysis of the substance of the matter having regard to all the circumstances of the case."

96. Lord Clarke contrasted arbitrators with judges: "although judges must enjoy independence of decision without direction from any source, they are in other respects not free agents to work as and when they choose, as are self- employed persons."
97. At paragraph 45, Lord Clarke considered the dominant purpose of appointing an arbitrator, holding that it was the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.
98. The distinction between employed and self-employed status has been the subject of extensive discussion and authority which touches upon the issues of direction and subordination identified in Allonby and Hashwani. Lord Clarke referred to the decided cases and before us the Claimants and the Second Respondent, in particular, argued their positions by reference to extensive jurisprudence on the meaning of employment and worker status. Material considerations arise from the following authorities.
99. In Ready Mixed Concrete (SE) Ltd v. Minister of Pension and National Insurance [1968] 2 QB 497, McKenna J stated at page 515:

"A contract of service exists if these three conditions are fulfilled:

The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in performance of some service for his master.

He agrees expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.

The other provisions of the contract are consistent with its being a contract of service."

100. In Alan McMeechan v. Secretany of State for Employment [1996] EWCA Civ 1166 the House of Lords found that the fact the Claimant was engaged in a series of individual assignments and was classified as a "self employed" contractor did not prevent him from being an employee. It was relevant to weigh the conditions. "Set on the one side (contract for services) [are] the express statement that the worker is to be regarded as self-employed and not to be working under a contract of service; and the liberty reserved to the worker of being able to work on a self-employed basis for a particular client. On the other (contract of service) side are to be set the reservation of a power dismissal for misconduct; the power of the contractor to bring any assignment to an end; the provision of a review procedure if such termination takes place; the establishment of a grievance procedure; the importation referred to in ... above; and the stipulation of an hourly pay rate, which is subject to deductions for unsatisfactory time-keeping, work, attitude or misconduct."
101. In Byrne Bros (Formwork) Ltd v. Baird [2002] ICR 667 Mr Recorder Underhill QC as he then was stated at paragraph 17 (4):

"Thus, the essence of the intended distinction must be between, on the

one hand, workers whose degree of dependence is essentially the same

as that of employees, and on the other, contractors who have a sufficiently arms-length and independent position to be treated as being able to look after themselves in the relevant, respects." He said: "Ultimately the question "worker or business undertaking" has, like 'employee or self employed' to be decided as a matter of informed impression."

102. Factors to consider might include the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies and the level of risk undertaken. In Cotswold Developments Construction Ltd v. Williams [2006] IRLR 181 Langstaff J stated at paragraph 53: "...it seems plain that a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases, demonstrate on which side of the line a given person falls."
103. Yorkshire Window Company Ltd v. Parkes UKEAT/0484/09 suggests that if there is no real negotiation as to the terms and the contract was probably

offered on a take it or leave it basis, that may be a material factor.

104. Hospital Medical Group v. Westwood [2012] EWCA Civ 1005 reached the Court of Appeal which considered that integration was a determining factor in deciding worker status on the facts of that case. Lord Justice Kay found that the Defendant, Dr Westwood, was sufficiently integrated into the Appellant's business to fulfill the criteria of a worker. In its marketing material, Hospital Medical Group (HMG) referred to him as "one of our surgeons". HMG was not just another purchaser of Dr Westwood's various medical skills. Separately from his general practice and his work at the Albany Clinic, he contracted specifically and exclusively to carry out hair restoration surgery on behalf HMG. In its marketing material, HMG referred to him as "one of our surgeons". Although he was not working for HMG pursuant to a contract of employment, he was clearly an integral part of its undertaking when providing services in respect of hair restoration, even though he was in business on his own account."
105. Under the relevant contract in that case Dr Westwood was required to pay all tax and national insurance as a self-employed person and agreed to indemnify the respondent in respect of any claims or demands which might be made by the authorities. He gave a warranty and a representation that he was an independent contractor and agreed that he was to bear sole responsibility for payment of tax and National Insurance contributions. The Court held that the fact that Dr Westwood was in business on his own account did not exclude him from being a worker.
106. The Westwood case also addressed the status of the other party to the contract. For worker status that other party must not, by virtue of the contract, have the status of a client or customer of any profession or business undertaking carried on by the individual who is to perform the work or services. The Court considered that "in most cases at least, it is easy enough to recognise someone who has this status. It includes, for example, the solicitor's or accountant's client or a customer who seeks and obtains services of a business undertaking such as from an insurance broker or pensions adviser."
107. Suhail v. Herts Urgent Care [2012] UKEAT 0416_11 considered the position of Dr Suhail, an out of hours GP, in the context of the Employment Rights Act 1996. The EAT found that the Respondent did not exercise sufficient control over Dr Suhail for him to be classified as a worker. The Respondent was employing doctors who were not and were not expected to be supervised and had complete clinical independence. This contributed to the EAT's finding that Dr Suhail was one of a number of GPs who worked for the Respondent and others in business on their own account. Further material matters included the Claimant's (genuine) contractual right to provide a substitute and provisions stipulating that the doctor was not employed and was self-employed, the manner of selection for work (namely that it was not personal to the Claimant but by providing shifts via a website which doctors might click to put themselves forward for) and that the Claimant was clearly marketing his services to whichever provider of medical services might wish to provide him with work. The first instance finding by the Employment Tribunal that the Respondent was in business on his own account was held by the EAT to be "fatal to the suggestion that he was either an employee or a worker".
108. The Claimants argue that their employment was under an umbrella contract, such that at all material times, including when they were not engaged on an assignment for one of the Respondents, they were employed by a Respondent and protected under the Equality Act.
109. In Stringfellow Restaurants Ltd v. Quashie [2012] EWCA Civ 1735, Elias LJ stated at paragraph 12;

"In order for the contract to remain in force, it is necessary to show that there is at least what has been termed "an irreducible, minimum of obligation" either express or implied, which continues during the breaks in work engagements: see the judgment of Stephenson LJ in Nethermere (St Neots v. Gardiner [1984] ICR 612, 613 approved by Lord Irvine of Lairg in Carmichael v. National Power plc [1999] ICR 1226, 1230. Where this occurs, these contracts are often referred to as "global" or "umbrella" contracts because they are overreaching contracts punctuated by periods of work. However, whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an inference that when he or she does work it is to provide services as an independent contractor rather than as an employee."

110. As Lord Justice Elias has said elsewhere, "there must be something from which a contract can be properly inferred". In Cotswold Developments Construction Ltd v. Williams [2006] IRLR 181 Langstaff J stated at paragraph 47: "Mutual obligations are necessary for there to be a contract at all." At paragraph 54 he stated:

"In this situation, a succession of contracts of short duration under each of which the person providing the services is either an "employee" or a "worker" will not give rise to any rights unless (i) the individual instances of work, are treated as part of the operation of an overriding contract; or (ii) section 212 of the Employment Rights Act applies to preserve continuity. Such an overriding contract cannot exist separately from individual assignments as a contract of employment if there is no minimum obligation under it to work at least some of those assignments. However, an overriding contract is not deprived of mutuality of obligation if the employee has the right to refuse work or where the employer may exercise a choice to withhold work. The focus must be on whether there is some obligation upon an individual to work and some other obligation on the other party to provide or pay for it."

111. Continuity of employment is an Employment Rights Act concept of no application to the issues on the PHR in this case.
112. There "must be mutual legally binding obligations on each side" (McLeod v. Hellyer Bros Ltd and Wilson v. Boston Deep Sea Fisheries Ltd [1987] IRLR 232, [1987] ICR 526), where there was no global contract of employment, merely intermittent crew agreements. The length of time over which a series of successive jobs had subsisted was insufficient to found a global or umbrella contract.
113. If there was no umbrella contract such that the Claimants were, throughout the material time, in the employment of a Respondent for the purposes of their Equality Act claims, then there is nonetheless an intermediate possibility that the Claimants in these cases were employed in the relevant sense during each assignment.
114. In Prater v. Cornwall County Council [2006] 2 All ER 1013, the claimant was an out of school tutor (home tutor). She had a long relationship with the council, which was not obliged to provide her with pupils to teach nor was she under a contractual obligation to accept. However, "[t]he important point is that, once a contract was entered into and while that contract continued, she was under an obligation to teach the pupil and the council was under an obligation to pay for her teaching the pupil made available to her by the council under that contract. That was all that was legally necessary to support the finding that each individual teaching engagement was a contract of service..."

Neutrality of interpreters

115. Interpreters must be impartial: see R. v. West London Youth Court [2000] 1 W.L.R. 2368 (citing with approval Rex v. Imrie (1917) 12 Cr.App.R, 282 and Reg, v. Mitchell [1970] Crim.L.R. 153). The "underlying objective of language interpretation' was described by Simon Brown LJ at p2375D as 'achieving a fair and properly understood trial in which the defendant has been able to do justice to his own cause."
116. Interpreters must also be independent. See also Liszewski v. Thomson [1942] J.C. 55, per Lord Fleming: "The interpreter is not to be regarded as being a representative either of the prosecution or of the defence. He is pro hac vice an official of the Court, and ought to be an independent person."

Procedural law - the PHR standard

117. lt is well settled that striking out is a draconian sanction to be applied only in the clearest case. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330. Kay LJ cited Elias J (as he then was) in the EAT decision in that case, as follows:"... where the facts themselves are in issue in my judgment it can only be in the most extreme case that the chairman can say that without any evidence being tested in cross-examination that the disputed facts would inevitably or almost inevitably be resolved against the claimant." Kay LJ went on to say: "It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute."

Discussion

118. Section 83 sub-sections (2) and (4) of the Equality Act 2010 define "employment", "employer" and "employee" for the purposes of claims under the Act by those seeking to rely on the protections provided by Part 5, section 39 or section 41. The Claimants in these cases bring such claims and therefore require to have been employed in this sense. If they were not, there can be no contravention of Part 5 of the Act and the Employment Tribunal has no jurisdiction to hear the complaints.
119. Following Jivraj v Hashwani the central issue for the tribunal in determining the section 83 question is whether the Claimants performed services for and under the direction of the Chief Constable of West Yorkshire Police (in the cases of Dr Windle and Ms Szwarckopf) or (in the cases of Dr Windle and Mr Arada) the Secretary of State for Justice in return for which he or she received remuneration, or on the other hand whether he or she was an independent provider of services who was not in a relationship of subordination with those Respondents as recipients of the services. We must give detailed consideration to each relationship between the parties.
120. In our view, a contract was entered into each time Dr Windle or Ms Szwarckopf accepted a new job when the police called to offer that work. (In so saying we do not intend to close the door to the possibility that there was also an 'umbrella contract'.)
121. Similarly, a contract was entered into by Dr Windle and Mr Arada each time they were offered and they accepted work by the Second Respondent. The contract terms included assignment-specific terms and written terms as set out in the Tribunals Service terms and conditions together with the handbook terms including those provisions set out above or similar terms for the Courts Service, as applicable.
122. The rubric of section 83 is not the same as that in, for example, section 230 of the Employment Rights Act 1996 concerning contracts for the purposes of the definitions of employee or worker in that Act. The contracts entered into by Dr Windle and Ms Szwarckopf with the First Respondent and by Dr Windle and Mr Arada with the Second Respondent were, in our view, clearly contracts personally to do work. Substitution was not allowed, the individual had to attend personally, and arrangements were in place to ensure that this was the person whom the police thought they had booked for the job (in the form of NRPSI checks and/or identification checks on attendance). Work was provided and performed for remuneration.
123. Were the Claimants were employed under such contracts?
124. The Claimants made repeated reference to their status as workers. Status as a "worker" would not satisfy the test relevant in this case, which is employment or the status of an employee (as defined in section 83 of the Equality Act). Nonetheless, worker status (in other legislation' and in the jurisprudence) involves the concept of work under a contract personally to do work and related concepts of contract counterparties who are not clients or customers of a profession or business undertaking carried on by the individual, and the authorities deal with self-employment in distinction to employment or worker status. In our view this jurisprudence has a bearing on the proper interpretation of section 83. One important difference which we bear in mind in our analysis of the facts below is that specifically recognised by Lord Clarke in Jivraj v Hashwani, namely that the words in section 83(2) "employed under" (which are read conjunctively with "a contract personally to do work") require employment; and employees are not the same as workers.
125. There is, in our view, a clear distinction between an arbitrator, whose role may not naturally described as one of employment at all, and the roles of the Claimants as interpreters in these cases. There is nothing inherent in the role of interpreter (including the specific interpreter roles fulfilled variously by the Claimants in these cases) which is inimical to employed status for the purposes of the Equality Act. We approach the matter on the basis of the facts and circumstances of these cases.
126. The Claimants asked us to stand back and draw conclusions from the totality of the evidence. Mr Mallett for the First Respondent made a similar submission. Each sought to persuade us that that exercise would lead to a conclusion in their favour.
127. We start by considering the positions of all three Claimants in certain respects which can be addressed together.
128. Turning first to the factors which we considered pointed towards self- employed status and away from employee status, it is clear that each of the three Claimants had a range of clients for their services. There was no exclusive supply of a particular service by any Claimant to either of the two Respondents in this case. The Claimants relied on an argument that there was a monopsonistic supplier of their work. That is not right: each Respondent in this case is legally distinct, and legally distinct from other justice sector providers of the Claimants' work. We also reject the notion that interpreting for the Court Service, for example, involved the exclusive supply of a particular kind of interpreting service such as to align the Claimants with Dr Westwood and his exclusive supply of hair restoration surgery on behalf of Hospital Medical Group. The nature of the interpreting services provided by all three Claimants when working for the Secretary of State for Justice or West Yorkshire Police was broadly similar. Indeed, the Claimants against West Yorkshire Police (Dr Windle and Ms Szwarckopf) did not seek to suggest that those services were qualitatively different to the services provided by Dr Windle and Mr Arada to the Secretary of State for Justice; nor do we gather from the evidence that the services of the three Claimants to those two Respondents were materially different to services provided by any of them to certain of their other clients, at least in the justice sector. Dr Windle, for example, interpreted for South Yorkshire Police. Accordingly, we do not believe that there was an exclusive supply for the relevant purpose in determining employee status and the range of clients served by the Claimants tends to point against employee status.
129. The terms of contract were such that there was no exclusivity and no guarantee of any work. These terms were not a sham and were borne out in practice as described above.
130. In common with Suhail, we conclude that the core interpreting task carried out by each Claimant in these cases was free from any control by either Respondent and was carried out with independence. We consider that, in these cases, that points against employment status, suggesting as it does a lack of subordination in an important aspect of the role.
131. We consider the establishment and use of CZ Language Services Limited by Dr Windle to be a factor pointing against her status as an employee. The use of business cards, letterhead and web addresses by Mr Arada and Ms Szwarckopf suggests self-employment. Ms Szwarckopf purchased professional indemnity insurance, which we consider counts against her in weighing employment status. These matters do, on balance, lead us to conclude that these Claimants all, in their own ways, marketed their services in ways which suggest self-employment.
132. The failure on the part of any of these Claimants to query the absence of holiday pay, sick pay or any other benefits of employment with either Respondent at any time would not have led us to conclude that that showed that the Claimants were genuinely self-employed, but in the context of the facts in these cases we concluded that it was consistent with our view that these Claimants did not consider themselves to be employed under a contract with these Respondents. We take the Claimants' own contemporaneous views into account as a factor pointing against employment. In this connection the PIA letter cited above underlines the positive consideration given to the matter by Dr Windle and Mr Arada, from which their attempts to resile in both submissions and evidence was unconvincing.
133. Regarding the First Respondent, there was no induction process or interview conducted by the First Respondent. There was no sick pay, holiday pay or pension. No training was provided. There were no disciplinary, grievance or appeal procedures. The First Respondent did not issue terms and conditions or a handbook. The NRPSI Code did not include restrictions or instructions on the appropriate method of interpreting. No dress code was issued.
134. We considered as neutral the following factors.
135. We considered the volume of work performed by Dr Windle and Mr Arada for the Secretary of State and by Dr Windle and Ms Szwarckopf for West Yorkshire Police to be a neutral factor. Dr Windle "practically lived at Bradford Central police station", Mr Arada worked practically every month for 13 years for the Tribunals Service. Ms Szwarckopf focused her efforts on the First Respondent. On the other hand, none of the Claimants considered themselves bound to accept work only from the First Respondent or Second Respondent and all considered themselves available for instruction by other parties. We have found that that was the effect of their contracts. It was also the practical reality. Each of the Claimants recognised and accepted that the Respondents owed them no work; and as a matter of contract there was no guarantee of any work. Mere length of a relationship is not a relevant indicator (McLeod at paragraph 66 of the IRLR report).
136. The requirement to observe certain standards of dress was neutral. We disagree with the Claimant's position that a duty to wear particular clothing was suggestive of employment. The proper inference from the context in this case is that that requirement was to uphold the decorum of a court or tribunal or, in the context of the police station, to maintain a suitably neutral and professional appearance.
137. We consider that the appraisals that took place both by the First Respondent and the Second Respondent were neutral as a factor. Users of services are entitled to manage their service providers and should not be required to approach the relationship in a binary manner, either accepting an individual for the provision of services or rejecting that individual. It must be open to service users to give feedback on performance and standards for the benefit of both sides without thereby running a risk that engaging in that level of management renders the individual an employee. We consider that that is the appropriate analysis in this case.
138. We considered the income tax, national insurance and VAT points raised by both sides. In our view, the tax position overall is a circular point. The Respondents offered no means of processing payments as if the Claimants were employees and forced them to account for tax on a self-employed basis. That ought not to count against the Claimants in this context. Similarly, whilst the Second Respondent relied heavily on the fact that Dr Windle's company had charged VAT, it is also true that Dr Windle believed she had no option but to charge VAT past a certain threshold of earnings. Again, that was because there was no employment taxation in place.
139. The Second Respondent also relied heavily on the presence of Dr Windle and Mr Arada on the NRPSI, submitting that it was a marketing tool in the manner of the Yellow Pages, in support of an argument that marketing was what self-employed people did. The NRPSI was a register providing basic details of the Claimants along with details of all other interpreters and provided no platform for personalised marketing messages. It was a requirement that the Claimants were entered on that register to obtain certain work. The register functioned, in reality, as a means of checking that interpreters were approved and reached certain standards, as we have found above. We were not persuaded that NRPSI registration and a public presence on the register told us anything relevant for our purposes.
140. We do not believe that the Second Respondent's submission that Dr Windle "self insured" assists in pointing one way or the other as to her status. In fact, this was merely another way of saying that Dr Windle had not purchased professional indemnity insurance as the handbook had advised.
141. The provision by the Claimants or by the Respondents of pens and paper, and the provision by the First Respondent of other materials such as recording equipment, is also a neutral factor in this case. In our view, the "tools of the trade" of interpreters are not properly to be seen as pens, paper or recording equipment. Their tools of the trade are the accumulated knowledge of their languages and associated cultural awareness.
142. We reject the Respondents' submissions that the requirement of impartiality on the part of interpreters in carrying out their task is to be seen as an indicator of self-employment. If employees of the Ministry of Justice can be impartial, such as judges, then impartial interpreters might equally be employees.
143. Mr Arada reduced the travel time that he would charge to the Tribunal Service for each assignment (page 967). The Second Respondent submitted that this was not done because his travel time was actually less, but was an attempt by Mr Arada to compete with, or stay competitive with, other interpreters so as to prove attractive to the Tribunals Service when deciding to whom to offer assignments. We do not accept the submission that this was an indicator of self-employment. In our view, re-negotiation of pay downwards is not currently a freedom solely associated with the self-employed.
144. We turn to consider the positive indicators of employment status for the purposes of the Equality Act, section 83(2).
145. Each Claimant had to perform their work personally. To send a substitute was a criminal offence. Once it is established that the individual must provide the contracted service personally, it is open to that person to sustain an argument that the requisite subordination exists.
146. In these cases, there was no negotiation of rates of pay, which were set by the Respondents.
147. As to the First Respondent, in Dr Windle's case, we bear in mind the book maintained by Bradford Central police station. This personal selection for work is consistent with employment status.
148. Both Dr Windle and Ms Szwarckopf were directed by the First Respondent in various ways, such as where to be, when. This refers to the manner in which they were controlled after having accepted an assignment. All of their movements in a police station were strictly monitored.
149. Both Respondents included the Claimants on their payroll databases.
150. As to the Second Respondent, there were a number of employment indicia which were not present in the case of the First Respondent. There were interviews and inductions, training and assessments, dress code and management. There were sanctions for poor performance, lateness, absence and misconduct. These amounted cumulatively to a significant body of indicators of employment status.
151. Although there was some training by the Second Respondent for Dr Windle and Mr Arada, we consider that the level of training was not that of an employer towards its employees, particularly in the case of professional staff such as interpreters.
152. We accept the Second Respondent's submission that Dr Windle and Mr Arada were not appraised against objectives for the future and that such appraisals, with an emphasis on career progression, are a feature of an employment relationship. We also accept that the converse is true: the absence of any such appraisals is a factor, albeit perhaps not a significant factor, pointing away from employment status.
153. We have addressed above the volume and regularity of work of the Claimants with the Respondents. An employment tribunal must be astute to test for substance and not be misled by form. A sensible and robust view is required. It might be said that nobody seriously expected Dr Windle, Mr Arada or Ms Szwarckopf to refuse work offered by these Respondents; that the reality, as opposed to the form of their contractual arrangements, was that they were expected to work when it was offered. We are unable to draw that conclusion in this case. Dr Windle provided services on a significant level to both Respondents (each independent of the other and thus to be seen as separate clients of Dr Windle). Neither Respondent had anything more than a hope that she would accept an offer of an assignment on any given occasion. Ms Szwarckopf had a limited track record with the First Respondent who sourced interpreters of Polish for a great many more assignments than it offered to Ms Szwarckopf; it neither expected nor needed an affirmative response from her on the 30 occasions when work was offered and accepted. Mr Arada was in a different position, working a very significant proportion of his time for the Tribunals Service. We have no doubt that he expected work and it expected to use him, even on specific assignments. Against that is set Mr Arada's own clear conviction that he was free, and that the Second Respondent was free too. That cannot amount to a contractual expectation that he would accept assignments, merely a practical expectation and, no doubt, hope, given his undoubted skills.
154. The contracts were not sham contracts and those with the Second Respondent provided that the Claimants were self-employed.
155. As to direction and subordination, the core nature of the interpreters' task is important. There was control and subordination in various practical respects in the way in which Dr Windle, Mr Arada and Ms Szwarckopf were required to perform their task. Some of that - notably in the case of the instructions given by the Second Respondent - went to the method of performing the interpreting task itself. There was no control in relation to the core work of interpreting which relied solely on the interpreter in her role as a conduit for the impartial exercise of skill and judgment and to pick up such things as "a missed cultural inference".
156. There was no control over hours worked save if and when one of the Claimants accepted an assignment.
157. Before returning to the question of employment under relevant contracts, we turn to the issue of whether any umbrella contracts existed in these cases.
158. Apart from a possible recall during proceedings, the interpreter's work for the First Respondent was finished at the end of each job, which in practical terms meant at the end of an interview with a suspect. The possibility that the interpreter might be recalled existed and to that extent each assignment left an obligation which might crystallise in the future.
159. Work for the Second Respondent comprised court or tribunal appearances by Dr Windle and Mr Arada. Even if the immediate booking extended (as a matter of contract) to any other work that might be available on the day in question, such that the Claimants were not free to leave the building until released, that obligation was in place only on the day of the booked assignment. It did not carry over to any subsequent occasion.
160. The question remains whether different assignments can be seen as part of one umbrella relationship. Aside from the recall point above, we have found no example in the evidence of any obligation, in practice or in any term of contract, of any ongoing nature beyond the requirements of the booked assignment. Dr Windle contended that there was an obligation on the Bradford Magistrates Court to book her due to the cost to the taxpayer since she lived locally to the Court, but that does not amount to any legal obligation and her other evidence made clear that Dr Windle considered herself not subject to any requirement to accept any particular booking, or any minimum number of bookings. We are prepared to accept that there may be practical repercussions if any of these Claimants repeatedly declined bookings, in the form of a reduction in offers made to them, but that does not seem to us to amount to a sufficient basis to find any obligation to accept.
161. We are unable to conclude that there was any "irreducible minimum of obligation", either express or implied, which continued during the breaks in work engagements for any of these Claimants. There was nothing from which a contract operative between assignments could properly be inferred; no overriding contract in operation which could be identified. The Claimants were entirely free to refuse all work at all times. Finally, we decline to infer any umbrella contracts in these cases, even in the case of Mr Arada, on the basis of the length of time over which their series of successive assignments for these Respondents had subsisted.
162. We conclude that no umbrella contracts existed in these cases.
163. As Lord Justice Elias said in the Stringfellow case, the fact that there is no umbrella contract does not preclude the individual from being employed under a contract of employment (or, in our view, under a contract personally to do work) when actually carrying out each assignment. We therefore return to that question for the purposes of determining whether the individual assignments constituted Equality Act employment for the Claimants.
164. In our view, the absence of mutuality of obligation between assignments points away from employee status under the rubric of section 83(2) for the times when these Claimants were engaged on assignments.
165. The assignments of Dr Windle and Mr Arada could not be described as intermittent. In our view, they were casual, in the sense that there was no obligation to accept any next assignment. That was also true for Ms Szwarckopf. That is a factor which, in this case, does suggest a lack of direction and subordination at the hands of the Respondents or, put another way, supports the conclusion that these Claimants were independent providers of services.
166. We see force in an argument that Dr Windle and Mr Arada were integral to the operations of the Second Respondent.
167. Taking account also the assessment of factors above, we conclude overall that, on balance, for Dr Windle and Ms Szwarckopf, the evidence does not come close to establishing that they were in an employment relationship with the First Respondent. They were, in our view, self-employed professionals. They were not employed under any contract of the kind listed in section 83(2)(a).
168. In Dr Windle's case, we reached the same conclusion in respect of her relationship with the Second Respondent. Although there were many more indicia of employment in her relationship with the Second Respondent than with the First Respondent, when viewed overall, it was clear that she was self- employed and not employed under her contracts with the Second Respondent.
169. Mr Arada's relationship with the Second Respondent was closer than the other relationships arising for consideration in these cases. He was recruited to the Tribunals Service and subject to a number of aspects of control found in employment relationships. On the other hand, at no stage before the Framework Agreement and ALS came on the scene had Mr Arada (or any of these Claimants or, as far as our evidence suggested, any interpreters) challenged the commonly held view that he was (or they were) self-employed.

The Claimants had all organised their affairs as self-employed people. Mr Arada was quite clear in the witness box that he was free. Whilst recognising that none of the Claimants was free to disregard certain instructions in the performance of an assignment after accepting it, nonetheless it would be wrong in our view to conclude on the totality of the evidence that Mr Arada was employed under each contract he had with the Second Respondent or that Dr Windle or Ms Szwarckopf were employed under any of their contracts.

170. Strong relationships existed between the Respondents and these Claimants. Their contribution to police stations, courts and tribunals was valued. One way or another, the Respondents needed and continue to need such services, suggesting a level of integration. In our view those factors do not suffice to render the Claimants Equality Act employees in these cases either before or after the implementation of the Framework Agreement in November 2011. They were not in a relationship of subordination with those Respondents and were, in the ultimate analysis, independent providers of services.
171. Finally, in case we are wrong about the status of the Claimants and nature of their contracts, we raise the issue of the prospects of success in their claims. Broadly, the Claimants claim less favourable treatment than British Sign Language interpreters and separately claim that the introduction of the Framework Agreement by its terms amounted to discrimination or harassment. As against the First Respondent, we would have struck out the claims as having no reasonable prospect of success. Those claims rested on an ongoing relationship beyond the introduction of ALS at the end of November 2011. There was no ongoing relationship between the First Respondent and Dr Windle and Ms Szwarckopf and no impact of any discriminatory provisions of the Framework Agreement. Even if there had been an ongoing relationship, the Claimants did not work under the new terms. No discrimination is alleged against the First Respondent prior to 28 November 2011.
172. For similar reasons we would have struck out the claims against the Second respondent based on the Framework Agreement.
173. We would not have struck out the claims against the Second Respondent alleging less favourable treatment than British Sign Language interpreters, which would require a hearing to determine central disputed facts.

Employment Judge Starr (28.3.2013)

RESERVED JUDGMENT SENT TO THE PARTIES ON 3rd April 2013

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