Does the right to send another person to work in your place (“substitution”) prevent the establishment of employee status?  The EAT found that it does not, upholding the Employment Tribunal’s original decision.

Facts

Mr Philips had engaged Universal Aunts, an agency specialising in providing live-in carers, to provide a carer to care for his elderly uncle, C. Usually, Universal Aunts would provide different carers on a rota basis, each for a few weeks at a time, but Mr Philips felt that C would benefit from having the same carer for at least six months.

The Claimant was therefore provided by Universal Aunts to care for C, and she worked as a live-in carer for C for over three years before her engagement was terminated. The Claimant had lived in C’s house, worked for 6 days a week, and was paid whilst she was (very infrequently) on holiday. Mr Philips often referred to the Claimant as his employee, and instructed her to do, or not do, various duties under this guise. Mr Philips paid the Claimant directly, but also paid Universal Aunts a monthly retainer to continue to provide cover for the Claimant while she was unavailable on her days off, on annual leave and on one occasion, whilst on jury duty.

Decision

The Tribunal found that the Claimant was an employee of Mr Philips as there was mutuality of obligation and sufficient control.

In relation to personal performance, and the Claimant’s ability to send a substitute in her place (for example when on holiday or jury service), both the Tribunal and the EAT noted that the Claimant had only sought substitution when she was unable to work (not when she was unwilling to work), which is not inconsistent with personal service. In any event, the Claimant wasn’t providing a substitute for herself – she was taking advantage of the retainer arrangement between the First and Second Respondents.

The very fact that the Claimant had been supplied because Mr Philips wanted someone for at least six months, showed that the Claimant could not have substituted herself in practice – substitution would have rendered the six-month term meaningless.

Comments: Although this case sets out a very specific set of facts, it is a reminder to all employers that employment status is assessed with reference to a number of different factors, which all need to be looked at in the round.

Chatfeild-Roberts v Philips & Universal Aunts Limited (2018)

 

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