Self-employed consultant was employee of firm under Equality Act

Employees: Consultant was self-employed for purposes of unfair dismissal claim

A self-employed consultant at a law firm fell within the definition of an employee for the purposes of claims under the Equality Act 2010, an employment tribunal has ruled.

However, Judge Jenkins held that, for an unfair dismissal claim, Ms J Williams’ employment status did not shift from self-employed to employee during her 11 years working in the Cardiff office of Sinclairslaw.

The solicitor was suing for unfair dismissal, as well as sex and age discrimination. The preliminary hearing was held to consider her employment status and limitation.

Ms Williams joined Sinclairslaw in 2011 as the only family lawyer in the Cardiff office on the basis that she was self-employed and would receive 37% of the fees she generated. She was also to pay for her own practising certificate and family law panel memberships.

The judge rejected her contention that the underlying nature of the relationship changed to one of employment soon after its inception, as key elements of an employment relationship not present.

The first was control. Other than compliance issues arising from legal aid audits, “no step appears ever to have been taken by the respondent to indicate to the claimant how she should carry out her work,” the judge said.

“The claimant was free to advise her clients in the ways she thought fit, and the respondent did not have power to, or certainly did not in practice, control the way in which she undertook her work.”

Sinclairslaw provided her with an office, IT equipment and administrative support, but that was not a material factor – there was no indication that it every sought to tell Ms Williams where or when she should work, and she was free to take holidays whenever she wanted without needing authorisation.

Judge Jenkins added: “There was evidence that one of its consultants engaged his own assistant, but that consultant enjoyed a higher percentage of generated fees, reflective of his lower burden on the respondent’s overheads.”

In later years, the firm renewed and paid for her practising certificate, and paid for most of her training. “However, it appeared that that was done out of convenience or out of goodwill. I did not consider that either matter was indicative of control.”

The other key element missing was mutuality of obligations. Sinclairslaw was not obliged to provide the solicitor with work and she did not have to do any that was.

The lack of any material level of mutuality of obligation was “evident from the fluctuation of billings” throughout the relationship; Ms Williams understood that, when her fee-earning was down, she would not get paid.

“The claimant appeared perfectly content to take advantage of her self-employed status throughout the relationship, in terms of paying income tax and National Insurance on that basis,” Judge Jenkins added.

“There was no indication that the claimant received sick pay in relation to any absences, and there was no indication that she was a member of any pension scheme.”

Indeed, Ms Williams had consistently maintained that she was not employed, as recently as 2021, when she was adamant that she could not act as a legal aid supervisor because she was not employed.

This meant her claim of unfair dismissal was dismissed.

The situation was different for the purposes of the Equality Act, where the definition of employment included “a contract personally to do work”.

The judge held: “In my view, she was very much recruited to work for the respondent as an integral part of its operation. She therefore fell on the worker or Equality Act employee side of the line.”

But the judge went on to hold that eight of the nine specific instances of alleged discrimination were brought out of time.

The only remaining allegation was that Ms Williams did not receive a response to an email sent to the firm’s deputy chief executive last March seeking confirmation of her employment status and asking for copies of all relevant documentation from her personnel file.

This would now move towards a hearing, the judge said.

He also said that, had the unfair dismissal claim been brought on the basis that Ms Williams was a worker, he would have held that she was one for the same reasons as the Equality Act issue.

In another case of interest to the growing band of self-employed consultants, we reported last week that the Solicitors Disciplinary Tribunal had held that one acted for three clients without authorisation, having not put them through his firm’s file opening procedures, even though he thought he was nonetheless acting under the banner of the firm.

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