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Genuine substitution does not always rule out employee status

17 January 2019 #Atypical & Flexible Working

For many years, the law has been clear that an unrestricted right to appoint a substitute is not consistent with employee status.  However, the judgment this month of the Employment Appeal Tribunal (EAT) in Chatfeild-Roberts v Phillips & Universal Aunts Limited shows one type of situation where an individual can be found to be an employee despite a substitute being used on apparently regular occasions.

Ms Phillips worked for over three years as a live-in carer for a retired colonel.   When the working relationship ended, she bought employment tribunal claims claiming that she was an employee.  The issue of personal service arose as Ms Phillips had, on several occasions, sent a substitute to carry out her work. The EAT held that although a substitute had regularly been used, this was only when Ms Phillips was on her weekly days off, when she was on annual leave and for a single period of jury service.  On the facts of this case, she was an employee.

The EAT have clearly followed the principle established in Pimlico Plumbers in finding that a right of substitution, exercised only when the contractor is unable to carry out the work, is consistent with personal performance.  This is yet another reminder for employers to avoid placing too much weight on contract wording and to give careful consideration to how such arrangements work in practice. 

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Russell Dann

Russell Dann
Senior Solicitor

E: rdann@clarkslegal.com
T: 0118 960 4653
M: 0792 014 4165