Employee Status: The Right To Use A Substitute

In the case of Chatfield-Roberts v Phillips & Universal Aunts Limited, the Employment Appeal Tribunal (“EAT”) held that the right to use a substitute can be consistent with employee status.

The Claimant worked as a live-in carer for the first Respondent’s uncle, Colonel Henry Brooke. The second Respondent, Universal Aunts Limited was an agency that introduced the Claimant to the first Respondent.

The Claimant worked for the first Respondent for over three years. After her employment was terminated, she brought a number of claims and the Employment Tribunal (“ET”) had to consider whether or not she was an employee.

Case law provides guidance on how to determine employee status. It is a multi-factorial test and each case must be assessed individually. Generally, for a contract of employment to exist the following elements must exist:

  • There must be mutuality of obligation between the employee and employer;
  • The work must be personally performed by the employee;
  • The employer must have a sufficient degree of control over the employee; and
  • The employee must not be in business for their own account.

The Claimant had been paid gross, and paid tax and national insurance contributions herself. These factors are sometimes indicative of self-employed status. However, the ET was keen to point out that this arrangement is not solely conclusive of self-employed status.

The Claimant had stopped preparing invoices and was paid by standing order. The second Respondent’s other carers worked on a rota basis and would move around every three or four weeks, however the Claimant worked solely for the first Respondent for three years. On the rare occasions that the Claimant took periods of leave she approached the second Respondent to arrange for a substitute to be provided instead of providing one herself. A substitute would be picked from the other carers working for the second Respondent.

The first Respondent also exercised control over the Claimant as tasks were set for her and she was required to live with his uncle permanently in order to attend to his needs when required. The ET determined that there was mutuality of obligation and sufficient control and therefore held that the Claimant was an employee.

The first Respondent appealed and asked the EAT to specifically consider the issue of substitution as he believed that the right of substitution did not indicate employee status.

The EAT cited an extract from the recent Pimlico Plumbers case stating, “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”. In the present case the EAT stated that the Claimant only sought a substitute when she was taking leave and therefore, she held the status of an employee. The appeal was dismissed.

This case highlights that there is a multi-factorial test which needs to be considered when determining employee status as no one factor is determinative. Each case must be assessed on a case by case basis and a myriad of issues need to be examined. In addition, this case serves as a reminder that employers should consider whether their employees’ contracts reflect the true working relationship.

If you would like more information about the issues raised in this article or any other aspect of employment law, please contact us at 02920 345511 or employment@berrysmith.com.