Employee status and 'personal performance'

12 February 2019

2018 was the year of the 'worker status' cases, and 2019 looks to be following suit.

The first employee status case of the year involves carers instead of drivers or couriers. In Chatfeild-Roberts v Philips and Universal Aunts, the claimant was a full-time live-in carer. She had no other home. She was placed by an agency and engaged by the patient's family. She had a two hour break each day and one day off a week. These periods were covered by another agency worker. She took only 3 periods of holiday in three years, for which she was paid. She was paid her 'salary' gross and expected to pay tax herself.

When the arrangement was terminated, the claimant brought an unfair dismissal claim. Only an employee can bring an unfair dismissal claim, and the family said she was self-employed. The Tribunal had to decide whether the claimant was an employee or self-employed. An employee is required to perform the work personally. The Tribunal looked at whether the right to send a substitute to do the work in her absence (for days off, holiday etc) prevented a finding of employee or worker status.

The Employment Tribunal found that she was an employee. The Employment Appeal Tribunal agreed. The ability to engage a substitute for times when an individual is unable to work, and with the permission of the 'employer', can be consistent with personal service. No one could work 24 hours a day, 365 days a year. Another agency worker was used only on the claimant's days off and holidays. The EAT went further though. They said that the employee was not 'sending a substitute' when she arranged for the agency to cover her time off. Rather, she was ensuring the patient's full-time care using the services the family had arranged. She was an employee.

This case has particular implications for employers in the care sector. Employers should note that sending a substitute to cover time off will not necessarily be a bar to employment status.


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