Personal service




A key requirement of both “employee” and “worker” status is a legal obligation to carry out work personally. Someone who has a genuine, unrestricted legal right to provide a replacement of their choice to do their work will be self-employed, not a worker nor an employee (Redrow Homes (Yorkshire) Limited v Wright [2004] EWCA Civ 469). As long as the contractual right to send a substitute is genuine and unrestricted, it does not matter whether it is ever exercised (Autoclenz v Belcher [2011] ICR 1157).


If a contract allows for a substitute but only with the employer’s approval, this is not an unrestricted right to send a replacement and the individual can still be a “worker” (Byrne Brothers (Formwork) Ltd v Baird and others [2002] IRLR 96).



A person can still be a worker if their contract allows them to delegate duties to someone else when they are unable to carry them out (for example, because they are on holiday or ill). But a contract that permits substitution simply because the person is unwilling to carry out the work is inconsistent with worker status (James v Redcats [2007] IRLR 296). 




In Pimlico Plumbers Limited & Charlie Mullins v Smith [2017] EWCA Civ 51, a practice among operatives of swapping their jobs around internally, tolerated by the employer, was not a contractual right to send a substitute. Instead it was just a method of internal work distribution similar to shift swapping. (This ruling has been appealed to the Supreme Court).



False substitution clauses, inserted into the contract to make it look as if someone is free to send someone else to do their job when this is not the case, are a common mechanism for avoiding statutory employment rights. Often, workers do not read contract documents before signing since there is no scope for the agreement to be changed and a refusal to sign is likely to mean no work. False substitution clauses have featured particularly prominently in the construction industry. Construction workers’ union UCATT (now merged with Unite) has won many tribunal victories for members defeating sham terms like these.