EAT WORKING TIME REGULATIONS: Worker / Holiday Pay
Mr Victor Jozsa (‘the claimant’) entered into a written agreement dated 1 January 2006 with Premier Groundworks Ltd (‘the respondent’) to provide groundwork services. By Clause 13 of the agreement it was provided that:-
‘[the claimant] shall have the right to delegate performance of [ground works] services under this agreement to other persons whether or not his employees provided that [the respondent] is notified in advance and provided that any such person is at least capable experienced and qualified as [the claimant] himself.’
The Employment Tribunal found that the agreement was not a sham and held that the claimant was a ‘worker’ within the meaning of Regulation 2(1) of the Working Time Regulations 1998 (‘WTR’) and was entitled to holiday pay. The issue on the appeal was whether the claimant was a ‘worker’ with in the meaning of the WTR.
The Employment Appeal Tribunal allowed the appeal. It held that:-
(1) where as in this case a party has an unfettered right not to personally perform the contractual obligations under contract but can delegate them for any reason to someone else, he cannot be a ‘worker’ as defined in the WTR even though the person actually performing the contractual obligations has to meet certain conditions (Express and Echo Publications Ltd v Tanton [1999] IRLR 367 applies);
(2) The position would be different if the right not to perform the contractual obligations depended on some other event such as whether that party was unable to perform his or her obligations (MacFarlane and Another v Glasgow City Council [2001] IRLR 7 and James v Redcats (Brands) Ltd [2007] IRLR 296).
(3) An additional reason why the claimant was not a ‘worker’ as defined in the WTR was that the respondent was not an entity ‘whose status is not by virtue of that contract that of a ..customer of a . . business undertaking carried on by the individual [namely the claimant]’. The reasons for that were that the claimant was obliged to send invoices to the respondents, the claimant was referred to throughout the agreement as the ‘supplier’ and the preamble stated that the claimant ‘carries on business as a groundworker… and in the course of business provides services to other building concerns’.
Judges:
Silber J
Citations:
[2009] UKEAT 0494 – 08 – 1703
Links:
Cited by:
Cited – UK Mail Ltd v Creasey EAT 26-Sep-2012
EAT JURISDICTIONAL POINTS – Worker, employee or neither
As a matter of construction of the contract, the Claimant was not required to perform work personally since he had an unfettered right to send others, . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 23 July 2022; Ref: scu.323714