Employment Status – When a worker is not required to provide services personallyMonday, March 30th, 2009
On 17 March 2009, in the case Premier Groundworks v Jozsa, the Employment Appeal Tribunal (EAT) allowed an appeal against an employment tribunal decision that Mr. Jozsa was a “worker” and entitled to holiday pay.
The Working Time Regulations 1998 provides that a person is a “worker” and therefore entitled to employment protection under those regulations if he works under a contract that is not a contract of employment but
“any other contract …whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.
Mr. Jozsa carried out groundwork for Premier Groundworks (“Premier”) under a contract which, among other provisions, allowed him to delegate his work to someone else, provided that Premier was notified in advance and the person was at least as capable, experienced and qualified as he was. In practice, Mr. Jozsa had never arranged for his work to be performed by such a substitute.
The employment tribunal had decided that this “substitute” arrangement was genuine, not a sham, and this was accepted by the EAT. After reviewing earlier precedents, the EAT concluded that,
“where a party has an unfettered right for any reason not to personally perform the contractual obligations under a contract but can delegate them to someone else, he cannot be a “worker” within the meaning of the WTR even though the person actually performing the contractual obligations has to meet certain conditions. The position would be different if the right not to perform the contractual obligation depended on some other event such as where that party was “unable” to perform his or her obligations.”
The EAT therefore decided that Mr. Jozsa was not contractually required to provide his services personally. He was not a “worker” and was not entitled to holiday pay.
Premier Groundworks v Jozsa
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