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Is the Right to Use a Substitute Consistent with Employee Status? The Employment Appeal Tribunal says “Yes”

In the recent case of Chatfeild-Roberts v Phillips & Universal Aunts Limited [2018], the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) did not err in finding that an individual’s right to substitution is consistent with employee status.

The Claimant (“C”) worked as a live-in-carer for the uncle of the First Respondent from June 2013 until she was issued with a letter of termination in August 2016. C was introduced to the First Respondent by the Second Respondent, a care placement agency. When C stopped working for the First Respondent, she brought a number of claims. The ET had to decide whether or not C was an employee of the First Respondent to determine C’s claims – the ET found in favour of C’s employee status. The First Respondent appealed this finding.

The EAT considered three grounds of appeal. We shall consider the first ground, namely, whether the Employment Judge failed to analyse and determine the contractual relationship between parties, with a focus on the individual’s right to substitution.

An extract from the case of Pimlico Plumbers Limited & Mullins v Smith [2017] was cited by the Employment Judge in considering C’s right of substitution: “a right of substitution only where the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance”. C had not exercised her right to substitution other than her weekly days off, for a period of jury service and for periods of annual leave (which she had been paid).

The Employment Judge confirmed that the ET made no error of law in finding that C was an employee of the First Respondent. The appeal was dismissed.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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