Employee Substitute

The requirement to carry out a task personally is usually an indicator that the person is an employee. The Employment Appeal Tribunal (EAT) has held in Chatfeild-Roberts v Phillips and Universal Aunts Ltd that just because an individual is permitted to provide a substitute to cover for their days off, does not mean they cannot claim employee status.

Basic facts

Ms Phillips, a live-in carer for the uncle of Mr Chatfeild-Roberts for three years, was introduced to the family through an agency called Universal Aunts Ltd.  She was initially engaged for six months during which time she presented invoices and was paid by Mr Chatfeild-Roberts. This initial period was then extended and after the first year, she was paid by him directly into her bank account. She paid her own tax and national insurance.

Ms Phillips was entitled to a day off a week and to annual leave, although she rarely took it.  The agency, through a retainer with Mr Chatfeild-Roberts, provided a regular replacement to cover for her day off, holidays and any other longer absences, such as when she went on jury service for two weeks.  Ms Phillips lived in the house permanently and was paid for her days off.

After Mr Chatfeild-Roberts terminated the arrangement in August 2016, Ms Phillips brought a claim for unfair dismissal. However, she first had to establish that she was an employee. 

Tribunal decision

The tribunal held that Ms Phillips was Mr Chatfeild-Roberts’ employee. It found that there was mutuality of obligation between them in that he regarded her as being under an obligation to provide services to his uncle and she regarded him as being under an obligation to continue to engage her to be the principal carer and housekeeper for his uncle.

The tribunal found that although she was responsible for paying her own tax and National Insurance she was not in business on her own account.  It also found that she provided her own work and skill in the performance of providing a service for Mr Chatfeild-Roberts and was under his control sufficiently to make him the master.

As regards cover for her absence the tribunal did not interpret this as providing a substitute. Instead, it held that she was making use of the facility that Mr Chatfeild-Roberts had negotiated with the agency whereby other carers would be provided as cover.

EAT decision

The EAT agreed that Ms Phillips was the employee of Mr Chatfeild-Roberts, not least because she had to carry out the work herself. Although she was able to contact the agency to provide a substitute, this only applied on her day off or when she took the occasional period of annual leave. He then paid the agency fee and the cost of the replacement carer. As such, she was not providing the substitute.

There was also mutuality of obligation as Mr Chatfeid-Roberts had come to depend on Ms Phillips to look after his uncle; while she lived in the house permanently in order to provide care as and when it was needed.

As for control, the EAT compared Ms Phillips’ situation with an employee who works from home. Just because she could choose her hours with little supervisory input did not make her “any the less an employee”.