Kuncharalingam v. Word By Word Translations Ltd

Personal service is an essential element of both a contract of employment and a limb (b) worker relationship. Where an individual has an unfettered right to provide a substitute, there is no obligation of personal service and the statutory status requirements are not met. The tribunal must assess the parties’ intentions from the whole factual matrix where the written document does not contain the complete agreement. A genuine and unrestricted substitution practice differs from a merely limited right to substitute.

The Employment Tribunal conducted a pre-hearing review concerning claims for unfair dismissal, age discrimination, unlawful deduction from wages and breach of contract. It held that the claimant was neither an employee nor a limb (b) worker and therefore that it had no jurisdiction. The tribunal also ordered him to pay £862.50 in costs.

The claimant appealed to the Employment Appeal Tribunal. Permission to proceed was granted after an oral rule 3(10) hearing. The central issue at the full hearing was whether the contractual relationship required the claimant to perform translation work personally.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the claimant had no obligation to provide personal service and consequently lacked employee or limb (b) worker status.
2. Where the written document does not contain the whole agreement, the parties’ intentions must be determined from the whole factual matrix. The tribunal was entitled to consider the parties’ established practice, including the claimant’s repeated use of substitutes and the respondent’s acceptance of that practice.
3. A contract of employment necessarily requires personal service. The same requirement applies to a limb (b) worker under section 230(3) of the Employment Rights Act 1996. A person who is free to choose whether to perform the work personally or send someone else is not undertaking personally to perform the work.
4. The right of substitution was not limited. Although the Code of Ethics referred to informing the respondent and obtaining agreement, the factual findings showed that the claimant had arranged substitutes without prior notification and without adverse consequences. The right was therefore unfettered in practice.
5. The conclusion was unaffected by a later letter criticising one unnotified substitution. That evidence had been considered by the Employment Tribunal, whose factual findings led inexorably to the absence of personal service.
6. The costs order was upheld. The Employment Tribunal was entitled to take account of the claimant’s unsuccessful allegations that documents had been forged, and the limited order was justified.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s decision that it lacked jurisdiction and the order for £862.50 in costs.
• Employment Tribunal: at a pre-hearing review, held that the claimant was neither an employee nor a limb (b) worker and dismissed the claims.