Yet another case on substitution clauses in agreements with individual contractors. Following the decisions of the EAT inRedrow Homes (Yorkshire) Limited v Buckborough & Sewell at the end of last year and, more recently, Premier Groundworks v Josza, the EAT has again considered the issue and has confirmed, in the case of Archer-Hoblin v MacGettigan, that where a contract contains a substitution clause:

  • clear and unambiguous wording providing an unfettered right of substitution is inconsistent with an obligation to perform personally any work or services and therefore inconsistent with status as employee or worker. Such a right means that the individual cannot be a worker for the purposes of the Working Time Regulations. What happened in practice was not relevant when determining the meaning of the clause; and
  • what happened in practice and, in particular, the individual's evidence that he would never send a substitute because he would lose the work, was relevant to the question of whether the substitution clause accurately reflected the parties' intentions or was a sham.

This decision acts as a reminder to employers that the wording of the contract will not prevent a finding that an individual is a worker or even an employee if it is a sham and does not reflect the true intentions of the parties.