Employment Law Speed Read – 21/01/19
21st January, 2019
In Chatfeild-Roberts v Phillips & Universal Aunts Limited, the Employment Appeal Tribunal held that the right to use a substitute is consistent with employee status. Accordingly, a live-in carer who occasionally used a substitute was deemed to be an employee and not self-employed.
Facts
Ms Phillips was engaged as a live-in carer for Mr Chatfeild-Robert’s uncle. Ms Phillips was introduced to the family through the agency, Universal Aunts Limited. Mr Chatfeild-Roberts initially engaged Ms Phillips for a period of six months; however, she continued working in this role for over three years.
Ms Phillips was paid on a gross basis and accounted for her own tax and national insurance contributions. For the first year of her engagement, Ms Phillips submitted invoices to Mr Chatfeild-Roberts in order to be paid. However after this, Ms Phillips was paid directly into her bank account.
Ms Phillips’ role included personal care, cooking, shopping and arranging medical appointments. Throughout her engagement, Ms Phillips informed Mr Chatfeild-Roberts of her daily activities. On the occasions that Ms Phillips was unable to work, and on her days off, the agency provided a substitute; Ms Phillips did not have the ability to choose her substitute.
On 6 August 2016, Ms Phillips was issued with a letter of termination. Ms Phillips subsequently issued a number of claims in the Employment Tribunal (ET). The ET had to first determine whether Ms Phillips was an employee, or self-employed.
Employment Tribunal
The ET found in favour of Ms Phillips and held that she was an employee of Mr Chatfeild-Roberts. The ET found that there was mutuality of obligation between the parties. Mr Chatfeild-Roberts regarded Ms Phillips as being under an obligation to provide her services and similarly, Ms Phillips regarded Mr Chatfeild-Roberts as under an obligation to continue to engage her.
Further, the ET placed emphasis on the fact that other than her days off, Ms Phillips was paid for days she took as leave.
The decision was appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal
The EAT dismissed the appeal and held that Ms Phillips was an employee and not self-employed. Mr Chatfeild-Roberts argued that because Mr Phillips had the ability to arrange a substitute, there was no obligation for him to provide work, nor was there any obligation for Ms Phillips to accept work.
The EAT disagreed and stated that a right of substitution only when the individual is unable to carry out their work, is consistent with personal performance, and therefore consistent with employee status. The EAT noted that other than when Ms Phillips was taking leave, which occurred only four times during her engagement, no substitute was ever sought.
Comment
This case highlights that a right of substitution can be consistent with personal performance, and therefore employee status. The EAT also emphasised that when determining employment status, “no one factor is determinative.”
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