EAT WORKING TIME REGULATIONS: Worker
In determining whether the Claimant was a worker within the meaning of the Working Time Regulations 1998, the Employment Judge erred in taking into account whether the Claimant actually performed work or services personally rather than determining the issue by reference to the terms of the substitution clause. The substitution clause gave an unqualified right to the claimant to delegate and so was inconsistent with a contract to perform personally any work or services within the meaning of WTR Regulation 2(1). Consistent Group Ltd v Kalwak [2007] IRLR 367 and Premier Groundworks v Sozsa [2009] UKEAT/0494/08 applied. Autoclenz Ltd v Belcher and others [2008] UKEAT/0160/08 distinguished.
The Employment Judge erred in failing to consider whether the substitution clause reflected the intention of the parties when deciding whether it was a sham. Applying Protectacoat Firthglow Ltd v Szilaghyi [2009] IRLR 365.
Appeal and cross appeal allowed. Case remitted to the Employment Judge to determine whether the substitution clause was a sham and in the light of that whether the Claimant was a worker within the meaning of the WTR.
[2009] UKEAT 0037 – 09 – 0307
Bailii
Working Time Regulations 1998
England and Wales
Employment
Updated: 01 November 2021; Ref: scu.347327
