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Use of substitute consistent with employee status

The Employment Appeal Tribunal in the case of Chatfield-Roberts v Phillips & Universal Aunts has held that the right to use a substitute does not necessarily prevent an individual having employee status.

Background

The Claimant worked as a live-in carer for Mr Chatfield-Roberts’ (“the First Respondent”) elderly uncle. She was introduced to the family by the agency, Universal Aunts (“the Second Respondent”).

The Claimant was required to work 12 hours per day, six days per week and had her tasks set by the First Respondent. She was paid her salary gross (so she was responsible for tax and National Insurance Contributions) and although she initially invoiced for her time, she stopped producing invoices and was later paid directly by standing order.

When the Claimant wanted to take holiday, she would approach the Second Respondent which would then arrange a substitute to attend to the uncle.

The arrangement was brought to an end by the First Respondent after three years.

The Claimant brought a number of claims and the Employment Tribunal was required to consider her employment status.

Decision

The Employment Tribunal held that the Claimant was an employee of the First Respondent. It found that the facts demonstrated that there was sufficient mutuality of obligation (the First Respondent was required to provide work and the Claimant was required to accept it) and there was sufficient control by the First Respondent.

The First Respondent appealed on the basis that the Claimant had the right to use a substitute (usually an indication of self-employed status).

The Employment Appeal Tribunal (“EAT”) rejected the appeal. It followed the principle from Pimlico Plumbers case that a right to appoint a substitute only when a contractor is unable to work can still be consistent with personal performance. As the Claimant had only arranged for a substitute to attend during annual leave and her days off, employee status was not prevented.

Comment

Organisations need to be very careful when seeking to engage individuals on a self-employed contractor or worker basis. The recent case law has shown that tribunals will look behind the contractual agreement and look at how the relationship actually works in practice. As shown in this case, even the fact that the Claimant was responsible for her own tax and could appoint a substitute did not prevent her from being classed as an employee with all associated employment rights.

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