Employment Status for Employment Rights – Whether workers required to perform services personallyMonday, May 18th, 2009
On 8 May 2009, in the case MPG Contracts Ltd v A England (Junior) & Anor, the London Employment Appeal Tribunal (EAT) allowed the employer’s appeal against an Employment Tribunal decision that Mr. England and his son were “workers” for employment rights purposes and therefore entitled to statutory holiday pay.
Mr. England and his son were subcontractors in the Construction Industry working for MPG Contracts. They were engaged on contracts for service that, among other provisions, allowed them to provide, at their own cost, other persons to carry out their work, subject only to the requirement that they be suitably skilled and experienced.
To be entitled to holiday pay under the provisions of the Working Time Regulations, a person must be either an employee or, alternatively, a “worker” required to provide services personally. The Employment Tribunal decided that the contract was a “sham” on the basis that MPG Contracts had refused to allow another of Mr. England’s sons to work on-site because there was insufficient work for him to do. In practice, the Tribunal decided, MPG Contracts required personal service, despite the contract clause to the contrary.
The EAT disagreed on the basis that the refusal to allow the other brother to work was not to substitute for Mr. England or his son but because there was no requirement for additional labour. There was no evidence therefore that the employer did not intend to allow substitutes. The engagement was not a contract for personal service, Mr. England and his son were not “workers” and there was therefore no entitlement to holiday pay. The appeal was allowed and the claims dismissed.
MPG Contracts Ltd v A England (Junior) & Anor
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