Can time worked between assignments be relevant for employment status purposes?

In the case of Capita Translation v Siauciunas, the Employment Appeal Tribunal (EAT) confirmed that time spent between assignments may be relevant to assessing someone’s employment status.

This was a discrimination case in which the Tribunal had to decide whether Mr Siauciunas was an employee such that he benefited from anti-discrimination rights.  The case was first considered by the Employment Tribunal which decided that Mr Siaciunas was an employee despite the lack of mutuality of obligation between assignments. Essentially, there was no obligation on Capita to offer Mr Siaciunas any assignments, and no obligation on him to accept. Between assignments, Mr Siaciunas was therefore free to do as he chose.

Capita appealed to the EAT arguing that the Employment Tribunal was wrong to disregard the lack of mutuality between the parties as a factor in determining employment status. Capita also highlighted that, in fact, there had been instances when work had been turned down by Mr Siaciunas between assignments which is more representative of self-employment or worker status. The EAT agreed with Capita and decided that the Employment Tribunal had been wrong in disregarding the lack of mutuality when considering employment status. The case will now be re-heard by a different Employment Tribunal.

The EAT’s decision in this case follows a series of high-profile employment status cases and demonstrates how fine the distinctions can be when determining employment status under the different tests applicable for discrimination, unfair dismissal and tax. The tests are all different and can result in different conclusions being drawn from the same facts. A careful consideration of all the facts is essential, and an over-reliance on the contractual documentation should be avoided.