Digital Communication Systems Ltd v Scully

A finding that there was no obligation of personal service because the individual had an unqualified right of substitution cannot stand with a finding that the same individual was a limb (b) worker. Personal performance is required by section 230(3)(b). Where those findings are made on the same facts, the limb (b) worker determination is flawed and must be set aside. The issue should be remitted for a fresh determination by a different Employment Judge, who may proceed on the existing primary findings of fact.

The Employment Judge at Plymouth held that Mr Scully was not an employee, but was a limb (b) worker. The latter finding enabled claims for unpaid accrued holiday pay and unlawful deductions from wages. The employee finding was not cross-appealed.

Digital Communication Systems Ltd appealed the limb (b) worker finding. The central issue was whether that finding could stand when the Employment Judge had also found that Mr Scully had an unqualified right to appoint a deputy at his own expense and was therefore under no requirement to provide personal service.

1. Appeal allowed. The Employment Judge's finding that there was no obligation of personal service, based on an unqualified right to appoint a deputy, contradicted the finding that the claimant satisfied the limb (b) worker definition.
2. Section 230(3)(b) requires an obligation to perform work or services personally. The Employment Judge could not consistently find both that personal service was absent for the employee issue and that the claimant had agreed to perform services personally for the limb (b) worker issue.
3. The contradiction was fundamental and rendered the limb (b) worker decision flawed on its face. It was therefore unnecessary and inappropriate for the Employment Appeal Tribunal to decide that issue itself.
4. The limb (b) worker issue was remitted to a different Employment Judge sitting in Plymouth. The fresh hearing is to proceed on the primary facts found by the original Employment Judge. The new judge must determine the proper contractual inferences and whether the claimant was a limb (b) worker after hearing the parties' submissions.

• Employment Appeal Tribunal: allowed the employer's appeal and remitted the limb (b) worker issue to a different Employment Judge.
• Employment Tribunal at Plymouth: held that the claimant was not an employee but was a limb (b) worker. The employee finding was not cross-appealed.