Is the right to use a substitute consistent with employee status?
Yes, held the EAT, in Chatfeild-Roberts v Phillips & Universal Aunts Limited.
The Claimant was a live-in carer for the first Respondent's uncle, who was described as "an irascible old man". The second Respondent was an agency which introduced the Claimant to the family. The Claimant had worked for the first Respondent for three years. She had been paid gross, taking care of tax and national insurance herself. Following the end of the arrangement she brought a number of claims. One of the questions for the tribunal was whether or not she was the first Respondent's employee.
The employment tribunal held that she was. The Claimant had initially been engaged for six months which had been extended, she had stopped preparing invoices and was paid by standing order, and while the second Respondent's carers normally worked on a rota basis, she had not. The tribunal accepted that there was mutuality of obligation, and sufficient control. On some occasions, the Claimant had approached the second Respondent to arrange a substitute, rather than providing a substitute for herself. The first Respondent appealed.
The EAT considered the question of substitution (amongst other matters). Substitution had only happened on her days off each week, for a period of jury service, and for periods of annual leave (for which she had also been paid). Following the principle in the Pimlico Plumbers case, the EAT held that the right of substitution only when a contractor is unable to work can still be consistent with personal performance, and so with employee status.
Thanks to James English of Ward Hadaway for preparing this case summary.