The plumbers appealed against a finding that the plumbers it employed were workers and entitled toassociated benefits.
Sir Terence Etherton MR summarised the case law and said: ‘ I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, 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 nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution 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, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.’
Sir Terence Etherton MR, Davis, Underhill LJJ
[2017] EWCA Civ 51, [2017] WLR(D) 120, [2017] IRLR 323, [2017] ICR 657
Bailii, WLRD
England and Wales
Citing:
Appeal from – Pimlico Plumbers Ltd and Another v Smith EAT 21-Nov-2014
EAT Contract of Employment : Whether Established – WORKING TIME REGULATIONS – Worker . .
Cited by:
Appeal frrom (At CA) – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
Cited – Stuart Delivery Ltd v Augustine EAT 5-Dec-2019
Jurisdictional Points – Worker, Employee or Neither – CONTRACT OF EMPLOYMENT – Whether established
The Tribunal had not erred in concluding that when Mr Augustine, a delivery courier, was undertaking fixed hours ‘slots’ for the Respondent, . .
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.574303