Substitution

13 Feb

ACCEPT NO SUBSTITUTE!

The Court of Appeal handed down its judgment in Pimlico Plumbers & Charlie Mullins v Gary Smith [2017] EWCA Civ 51 on 10th February 2017. In this case a plumber had been engaged under a series of written agreements to provide his services as an independent contractor. The question arose as to whether he was in fact a worker and/or an employee...

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ACCEPT NO SUBSTITUTE!

The Court of Appeal handed down its judgment in Pimlico Plumbers & Charlie Mullins v Gary Smith [2017] EWCA Civ 51 on 10th February 2017. In this case a plumber had been engaged under a series of written agreements to provide his services as an independent contractor. The question arose as to whether he was in fact a worker and/or an employee.

The Pimlico Plumbers case is one of a number of cases on employment status that have been making their way through the Tribunals & Courts in recent months. It is always dangerous to try and draw any general rules from these cases. They are invariably determined on the facts found by the original tribunal hearing the matter. In this case there were two written contracts with express terms dealing with the contractual relationship between the parties (just for the record he was found to be a worker but not an employee by the Employment Tribunal & the EAT). Nevertheless what can be helpful are the restatements of the legal principles applicable to cases of this nature.

Personal service is a key issue. In this case Sir Terence Etherton MR, @ paragraph 84 of the Judgment, gave some helpful guidance on express contractual rights to substitute service. I have summarised the guidance below:

1. Where there is an unfettered right to substitute another person to do the work or perform the services this is inconsistent with an undertaking to do so personally.

2. A conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the extent to which the right of substitution is limited or occasional. Three examples were given:

a. Where a right of substitution is limited to when the contractor is unable to carry out the work this will, subject to any exceptional facts, be consistent with personal performance.

b. Where a right of substitution is limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, this will, subject to any exceptional facts, be inconsistent with personal performance.

c. Where a right to substitute is solely subject to the consent of another person who has an absolute and qualified discretion to withhold such consent it will be consistent with personal performance.


Peter D

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