Consistent Group Ltd v Kalwak and others: EAT 18 May 2007

EAT CONTRACT OF EMPLOYMENT – Definition of employee
Employment tribunal concluded in the particular circumstances of the case that an agency supplying workers to a third party had entered into contracts of employment with those workers. The EAT held that this was a conclusion the Chairman was entitled to reach. Whilst it will no doubt be an exceptional case where such a finding can properly be made, the fact that it is the end user and not the agency which exercises control over the actual operation of the work does not, as a matter of law, prevent a contract of employment arising between the agency and the employee. Various grounds of challenge considered and rejected.
Elias J said: ‘The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship . .
In other words, if the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship. But if these clauses genuinely reflect what might realistically be expected to occur, the fact that the rights conferred have not in fact been exercised will not render the right meaningless.
. . Tribunals should take a sensible and robust view of these matters in order to prevent form undermining substance . . ‘

Elias P J
[2007] UKEAT 0535 – 06 – 1805, UKEAT/0535/06, [2007] IRLR 560
Bailii, EAT
England and Wales
Cited by:
Appeal fromConsistent Group Ltd v Kalwak and Another CA 18-Sep-2007
Renewed application for permission to appeal. . .
CitedConsistent Group Ltd v Kalwak and others CA 29-Apr-2008
The court was asked whether the claimants were either employees or workers of the company. They had been engaged to wash cars under nil-hours contracts. . .
CitedAutoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
CitedUber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .

Lists of cited by and citing cases may be incomplete.


Updated: 20 December 2021; Ref: scu.252469