The right to use a substitute is consistent with employee status

The EAT has held in Chatfeild-Roberts v Phillips & Universal Aunts Limited that the right to use a substitute did not preclude the Claimant from having employee status.

Ms Phillips worked as a live-in carer for Mr Chatfeild-Roberts’ uncle. The second Respondent, Universal Aunts Limited was an agency who introduced the Claimant to the family. She worked for Mr Chatfeild Roberts for three years and was paid in gross, having to arrange the payment of tax and national insurance herself. When her employment ended, she brought several claims and it fell on the Employment Tribunal to determine whether Ms Phillips was an employee.

At first instance, the Tribunal held that she was. Ms Phillips was initially engaged by Mr Chatfeild-Roberts for six months, but this was extended. She also ceased preparing invoices and was paid by standing order. Unlike the other carers employed by Universal Aunts Limited who worked on a rota system, she did not. The Tribunal therefore concluded that there was both sufficient mutuality of obligation (the obligation on an employer to provide work and the obligation on an individual to accept that work) and control and held that she was an employee.

As there were occasions where Ms Phillips would approach the agency to arrange a substitute, this decision was appealed. The EAT considered this issue when handling the appeal and upheld the decision of the Tribunal. As Ms Phillips had only arranged a substitute on her days off each week, for a period of jury service, and for periods of paid annual leave; the EAT applied the principle from the Pimlico Plumbers case and concluded that the right of substitution only when a contractor is unable to work can still be consistent with personal performance, and therefore does not preclude a finding that they are an employee.

This case ought to be borne in mind by employers engaging staff through agencies who can provide a substitute when they are unable to work. It is a useful reminder to always consider how a contractual relationship actually works in practice.

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