Search
Close this search box.

A "worker" under the WTR cannot have an unfettered right of substitution

A “worker” under the WTR cannot have an unfettered right of substitution

 

Mr MacGettigan’s contract with Archer-Hoblin stated that he was a “self-employed sub-contractor”. The contract contained an unfettered  substitution clause which provided him with the right to send someone with similar experience and qualifications to do his work and while he would be paid for that work he must then arrange to pay the substitute himself.

Mr MacGettigan gave evidence that that although the contract referred to a substitute he knew how the industry worked and it was not the norm to send someone else to do the work. He said that if that were to happen it would be likely that the contract would come to an end. Indeed, he had personally worked for a period of over 5 months on a daily basis prior to his claim.

The employment judge concluded that the substitution clause was not a sham and that Mr MacGettigan was a “worker” for the purposes of the Working Time Regulations 1998 (“WTR”), and so his claim for holiday pay succeeded. The EAT, however, upheld the employer’s appeal. The definition of “worker” under WTR is not limited to an individual who works under a contract of employment: it includes those contracted to provide services personally. The EAT confirmed that a limited power of substitution is not inconsistent with a requirement to provide personal service. However, the judge had made two fundamental errors:

(1)The substitution clause was not restricted in any way: as a matter of law, such an unfettered right is inconsistent with an obligation to perform work personally and cannot possibly come within the meaning of a ‘worker’ as set out in Regulation 2(1) of the WTR.

(2)How the parties behaved in practice was not considered at all, so no evidential basis existed for concluding that the arrangement was not a sham. 

 

 

Read more

Latest News

Read More

The most ridiculous reasons for sacking an employee

23 February 2024

Newsletter

Receive the latest HR news and strategic content

Please note, as per the GDPR Legislation, we need to ensure you are ‘Opted In’ to receive updates from ‘theHRDIRECTOR’. We will NEVER sell, rent, share or give away your data to third parties. We only use it to send information about our products and updates within the HR space To see our Privacy Policy – click here

Latest HR Jobs

University of Nottingham – HR OperationsSalary: £23,256 to £26,071 per annum This provides summary information and comment on the subject areas covered. Where employment tribunal

Are you looking for an opportunity to make a difference to the lives of autistic people and their families, while supporting the staff who care

Head of HR Private Healthcare. Office Based role | Manchester. Our client is recruiting a Head of HR with CIPD 5 for their business which

We are looking for an experienced recruitment consultant to come and sphere head a new recruitment company. CVs without a cover letter will not be

Read the latest digital issue of theHRDIRECTOR for FREE

Read the latest digital issue of theHRDIRECTOR for FREE