In the recent case of Chatfield-Roberts v Phillips & Universal Aunts Limited the Employment Appeal Tribunal held that is can be possible, in certain limited circumstances, for an individual to be an employee despite them having the right to appoint a substitute.
Ms Phillips worked for three years as a live-in carer for Mr Chatfield-Roberts' uncle. She was introduced to the family by an agency, Universal Aunts Limited. In August 2016 Ms Phillips' appointment was terminated and Ms Phillips issued various claims in the Employment Tribunal. Before Ms Phillips was able to pursue those claims she needed to show that she was an employee of either Mr Chatfield-Roberts or Universal Aunts Limited.
Ms Phillips had initially worked for Mr Chatfield-Roberts through Universal Aunts, on a rota basis, whereby carers would move to a different appointment every few weeks. However Mr ChatfieldRoberts and his family then requested a more permanent arrangement. Following this Ms Phillips was appointed to work solely for Mr Chatfield-Roberts, initially for a period of six months which was then extended, and Ms Phillips remained working for him for 3 years. During the appointment Ms Phillips had stopped preparing invoices and was paid by standing order, although she was paid on a gross basis and paid her own tax and national insurance.
Ms Phillips had arranged for a substitute from the agency to carry out her work on several occasions during her placement with Mr Chatfield-Roberts. However, this was only during periods of leave - her weekly days off, her paid annual leave and a period of jury service.
In the first instance the Tribunal found that whilst Ms Phillips was not an employee of the agency, she was an employee of Mr Chatfield-Roberts. Mr Chatfield-Roberts appealed arguing that the ability for Ms Phillips to use a substitute was not compatible with employee status. The EAT found however that a right of substitution exercised only when an individual is unable to work can still be consistent with personal performance, and therefore does not preclude employee status. It held that, in the circumstances, Ms Phillips was an employee of Mr Chatfield-Roberts and was not self-employed.
In the recent case of Ibrahim v HCA International Ltd, the Employment Appeal Tribunal ('EAT') has held that complaining about defamation can amount to a protected disclosure for the purposes of a whistleblowing claim.
Mr Ibrahim was an interpreter at a...