The Court of Appeal in Pimlico Plumbers said a genuine unfettered right to substitute someone else to do the work is inconsistent with being a ‘worker’. However an EAT has now suggested that the Supreme Court decision in Uber may have changed that.
Giving an individual, particularly in the gig economy, a contractual right to appoint someone else to do the work is a potential way for employers to argue the person does not have rights as a ‘worker’, eg a right to holiday pay and rights under the Equality Act 2010. The argument is that the contract is not then for ‘personal’ service. Pimlico Plumbers and other cases have considered what restrictions on the right to appoint a substitute are consistent with being a ‘worker’, but the Court of Appeal said in that case that a genuine unfettered right to substitute someone else to do the work is inconsistent with being a ‘worker’.
However, the EAT in Sejpal v Rodericks Dental www.bailii.org/uk/cases/UKEAT/2022/91.html has now said it is arguable, following the Supreme Court decision in Uber, that there could be a situation where despite a contractual term providing an unfettered right of substitution, ‘the reality is that the predominant purpose of the agreement is personal service, so that the person is a worker. Possibly personal service need not even be the predominant purpose. The EAT did not have to decide the issue in that case.
More: Workers>Right to substitute.