Worker status is undermined by an absolute right to substitution

Community Dental Centres Ltd v. Sultan- Darmon [2010] UKEAT 0532_09_1208

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• an absolute right of substitution in a contract (the right to send another worker in your place) undermines the possibility of the existence of worker status.
• For worker status to exist under s230(3) of the Employment Rights Act 1996 you must "perform personally any work or services".
• Parliament needs to introduce legislation allowing for a presumption that a low paid worker working for one employer is an employee.

In the case of Community Dental Centres Ltd v Sultan-Darmon Silber J of the EAT has decided that an absolute right of substitution in a contract (the claimant here being under no obligation to do work himself as he could delegate his duties) undermines the possibility of the existence of worker status.

When a dentist claimed for unlawful deductions from wages against his employer an employment tribunal found that he was not an employee but a worker. The respondent had its appeal in the EAT upheld in that the Claimant had a right of substitution the existence of which precluding worker status.

In order for worker status to exist a worker must according to s230(3) of the Employment Rights Act 1996 "perform personally any work or services".

This case shows just how difficult it is for a worker to prove his worker status in the face of an employer that has put careful thought into drawing up a worker's contract and then in the implementation of that contract. The worker here was given tools for his job, and even had his hours carefully controlled and the amount of time which the Claimant could take off was limited. He was required to participate in an emergency on-call roster, was not paid for sickness or holiday, but after 5 days of absence needed to find a locum or one would be found for him by his employer.

It is a particular legalistic and circular reasoning that states that, “because I say that you work for yourself and in a hundred different ways refuse to extend to you rights that an employee has come to expect, for example by my refusing to pay you for sickness and holidays, for making you pay when you damage my equipment, for ignoring you and giving your job to someone else when you are sick, for not giving female workers maternity pay, or guaranteeing you work, for making your responsible for your own tax affairs etc, you can't be a worker but a sub contractor“.

What a nonsense! But this is present day UK law! The more astute and malign the employer and the more cleverly his lawyers have drafted the employment contract (and its implementation carefully managed), the more chance he has of getting away with the legal absurdity of workers on the minimum wage and dependant on one employer being described as 'self employed'.

There are presently no signs that a future labour government will do away with the iniquity of the existence of millions of 'sub contracting' wage slaves in the UK. The main defence of workers rights has for a long time now come not from the efforts of British trades unions or the Labour Party but from the much maligned EU.

A range of relevant cases were considered and applied as follows:

The dicta in Redrow Homes (Yorkshire) Limited v Buckborough [2009] IRLR 34[56] that found that worker status exists when a worker is obliged to personally find a substitute was considered wrong as it was inconsistent with previous case decisions.