Court Interpreters’ Race Discrimination Claims Boosted

March 16, 2015

Court Interpreters’ Race Discrimination Claims Boosted

In Windle and Another v Secretary of State for Justice, foreign language interpreters who claim that they suffered race discrimination whilst working for Her Majesty's Courts and Tribunals Service (HMCTS) have had their compensation hopes boosted by the Employment Appeal Tribunal (EAT).

The two interpreters appeared on the National Register of Public Service Interpreters and they worked regularly, but not exclusively, for HMCTS. Their service was governed by written terms and conditions; however, there was no guarantee that they would be given work and they were not obliged to take it when offered.

No provision was made for annual leave, sick pay or pension contributions and they were forbidden, on pain of criminal sanction, to send substitute workers to carry out their assignments. They were also issued with security badges but viewed themselves as self-employed and were treated as such for tax purposes.

They claimed that their terms and conditions of service were less favourable than those afforded to British sign language interpreters and launched proceedings under the Equality Act 2010. However, the Employment Tribunal (ET) struck out their complaints on the basis that, when they were between assignments, there was no 'mutuality of obligation' in their relationship with HMCTS. They were neither employees in the ordinary sense nor employed under contracts personally to do work within the meaning of the Act.

The EAT agreed that the interpreters were clearly not employed under contracts of employment. However, in allowing their appeals, it found that the question of mutuality of obligation was irrelevant to the issue of whether they were contracted personally to do work. The case was sent back to the ET for reconsideration on the basis that its original decision contained a fundamental error of law.