EAT PRACTICE AND PROCEDURE – Time for appealing
WORKING TIME REGULATIONS – Worker
1. Where an Employment Tribunal has given Judgment in 2 or more tranches, a copy of the written record of the Judgment of the Employment Tribunal which is subject to appeal and the written reasons for the Judgment, or an explanation as to why written reasons are not included must be lodged with the Notice of Appeal in accordance with Employment Appeal Tribunal rule 3(1), and Employment Appeal Tribunal Practice Direction paragraph 2. Failure to comply with this requirement means that the appeal is not properly constituted. In future if a party fails to lodge copies of all relevant judgements or decisions the appeal will not be validly lodged and the Notice of Appeal will be rejected; see also practice statement of 3 February 2005.
2. In determining whether a person qualifies as a ‘worker’ within Regulation 2 of the Working Time Regulations 1998 the following principles are established by the authorities in relation to the determination of whether a contract provides for the provision of personal services.
(a), the question whether or not a contract provides for the performance of personal services is essentially a matter of construction,
(b), the court is concerned with construing the contract, rather than with general policy considerations,
(c), the fact that the individual chooses personally to supply the services is irrelevant; the issue is whether he is contractually obliged to do so,
(d), the right or obligation to employ a substitute will not necessarily mean that there is no obligation on the part of the ‘contractor’ to perform personal services unless that right is unfettered,
(e), in cases where the ‘contractor’ is unable, as opposed to unwilling, to carry out specified services, and has accepted an obligation to perform those services, but is unable to do so, and where he himself does not bear the costs of employing a substitute, a limited or occasional power of delegation may not be inconsistent with a contract to provide personal services,
(f), a worker holds an intermediate position between an employee and someone who carries on his own business undertaking.
Serota QC J
[2010] UKEAT 0484 – 09 – 2705
Bailii
England and Wales
Employment
Updated: 12 November 2021; Ref: scu.416159
