The right to substitute does not necessarily negate the requirement for personal service

04 April 2019

In yet another case on worker status, the Employment Appeal Tribunal (EAT) has considered whether a live-in carer’s right to provide a substitute meant that there was no requirement for personal service, and therefore prevented her from asserting that she was an employee.

In Chatfeild-Roberts v Phillips & another (2018), Ms Phillips worked as a live-in carer for an elderly Colonel. She had been introduced through an agency and was subsequently engaged directly. The usual practice was for carers to rotate every three to four weeks, but in the claimant’s case, she had been caring for the Colonel for three years. She was paid gross and accounted for tax and national insurance herself.

Notwithstanding her long-term engagement, the Colonel’s family maintained a contract with the agency. On her non-working day each week, the agency would provide another carer. When Ms Phillips was not available to care for the Colonel, she would arrange cover via the agency. In practice, Ms Phillips was rarely absence. During her three-year engagement, she was absent on four occasions (including holiday and jury service), during which time she was paid in full.

Following her dismissal, Ms Phillips asserted herself as an employee. The Colonel’s nephew, Mr Chatfeild-Roberts, disagreed and argued that there was no employment relationship because there was no mutuality of obligation, insufficient control and no requirement for personal service. In respect of this latter point, Mr Chatfeild-Roberts relied on the few occasions that Ms Phillips was absent and the fact that she would arrange cover via the agency. This was rejected at first instance by the Employment Tribunal and again on appeal.

In particular, the EAT looked at whether the claimant’s ability to organise cover via the agency when she was not available to work negated the requirement to provide personal service. In reality, however, the claimant was not free to engage a substitute as and when she chose. She was simply taking advantage of the ongoing contractual relationship between the family and the agency that enabled her to arrange cover during any absence. Referring to the judgment in the Pimlico Plumbers case, the EAT quoted Lord Justice Etherton who said:

"a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance"

The EAT also relied on the fact that, when the claimant was first engaged by the Colonel’s family, she had been asked to commit to the work for an initial period of six months, suggesting that personal service was required by the family.

This is another example of Tribunals looking beyond the written contract and studying what happens in practice. A right of substitution can be a useful tool in disproving employment status, but it should not be relied upon as a bar to employment status when the reality of the situation is that you are expecting the individual to carry out the work personally.

By Michelle Tudor

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