Chatfeild-Roberts v Phillips & Anor

Whether a person is an employee depends on the reality of the whole working relationship. The Ready Mixed Concrete conditions require personal service, sufficient control, and contractual terms consistent with a contract of service. No single feature, including gross payment and self-accounting for tax and national insurance, is determinative.

A limited arrangement for agency cover during absence may remain consistent with personal performance. Control can exist although a trusted live-in worker chooses working hours and receives little day-to-day supervision. Where the parties have not agreed express terms about sickness or holiday pay, an Employment Tribunal must decide the issue from the available evidence. An appellate court should not overturn that fact-sensitive assessment through pernickety or unrealistically detailed scrutiny.

The Claimant worked as a live-in carer and housekeeper for the First Respondent's uncle from June 2013 until her termination in August 2016. She lived at the house, carried out a defined range of care and household duties, and was paid gross. She accounted for her own tax and national insurance.

The Employment Tribunal held that she was an employee of the First Respondent, but not of the care agency, the Second Respondent. The First Respondent appealed, alleging inadequate analysis and findings on substitution, mutuality of obligation, paid leave and sickness absence, control, and the Claimant's working hours.

The central issue was whether the Tribunal had made an error of law in finding that the real relationship was a contract of service.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the Claimant was an employee of the First Respondent.

2. The Tribunal had correctly applied the multi-factorial approach in Ready Mixed Concrete. It was entitled to find personal service, mutual obligations, sufficient control, remuneration, and other terms consistent with employment. Payment gross and the Claimant's own payment of tax and national insurance were not determinative.

3. The agency's provision of cover on the Claimant's weekly rest day, leave and jury service did not establish an unfettered right of substitution. The Claimant was not supplying a substitute for herself. She used a cover arrangement negotiated and retained by the First Respondent. A six-month commitment at the outset also supported the finding that personal performance was required.

4. During the period when the Claimant was working, mutuality caused no difficulty: she undertook to work and the First Respondent undertook to pay. The Tribunal was entitled to find that the parties in fact regarded themselves as bound by an ongoing arrangement.

5. Control did not require close supervision or fixed daily hours. The Claimant's ability to choose when to take a two-hour break and the reduction in oversight as confidence in her work grew were compatible with employment. Her obligation to attend to the Colonel when required was not inconsistent with those findings.

6. There were common-sense limits to intensive scrutiny where the parties had made no express agreement about paid holiday or sickness absence. The Tribunal could take account of the fact that the Claimant had been paid in full for every period of leave actually taken. Read as a whole, the reasons were adequate and were not undermined by an unfortunate reference to other contractual provisions.

• Employment Appeal Tribunal: dismissed the First Respondent's appeal and upheld the finding that the Claimant was an employee of the First Respondent.
• Employment Tribunal, London (Central): decision sent to the parties on 25 October 2017. It found that the Claimant was an employee of the First Respondent and was not an employee of the Second Respondent. There was no appeal against the dismissal of the claim against the Second Respondent.