BCA Logistics Ltd v Brian Parker & Ors

An unfettered contractual right to substitute another person is incompatible with limb (b) worker status only if it is a genuine part of the parties’ agreement. A tribunal must determine the actual obligations from all relevant evidence, including contractual language, practice, practical feasibility, and the parties’ expectations. Non-use of a substitution right is relevant but is not conclusive.

An Employment Tribunal may give little weight to post-claim substitution enquiries where its factual findings show that they do not reliably demonstrate the ordinary contractual reality. An appeal does not permit the EAT to reweigh that evidence. A passing observation about the absence of witnesses does not amount to a legal error where it formed no part of the tribunal’s reasoning or outcome.

BCAL engaged the claimants as purportedly self-employed drivers to collect, inspect and deliver customers’ vehicles. The Birmingham Employment Tribunal held that they were limb (b) workers under Employment Rights Act 1996, Working Time Regulations 1998 and National Minimum Wage Act 1998.

The standard-form contract permitted a driver to provide a substitute. The Tribunal found that provision unreal and not part of the true agreement. It relied on the absence of any actual substitution over many years, the lack of systems, training and practical arrangements for substitutes, and the risks involved in allowing unknown and untrained persons to handle and inspect customers’ vehicles.

BCAL appealed, alleging that the Tribunal had wrongly treated the absence of current or recent driver witnesses as a deficiency in its case, and had wrongly discounted evidence of substitution enquiries because it had been generated during litigation.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the substitution clause was not genuine and that the claimants were workers.

2. The Tribunal had correctly directed itself on the governing law. A written substitution clause may be disregarded where it is an unrealistic possibility which does not reflect the parties’ true agreement. The inquiry is fact-sensitive. Evidence of actual practice and practical feasibility is relevant, but the mere non-use of a contractual right does not by itself negate its genuineness.

3. The Tribunal’s reference to a “striking gap” in BCAL’s evidence was a passing observation. Read as a whole, its judgment did not draw an adverse inference from BCAL’s failure to call current or recent drivers, shift any burden of proof, or treat that absence as a reason for its conclusion. Its conclusion instead rested on detailed findings about the commercial and operational implausibility of substitution and the absence of any arrangements for it.

4. The Tribunal was entitled to assess the limited weight of the later substitution enquiries. The enquiries occurred after proceedings had begun, were escalated to a senior manager, did not result in a substitution, and did not displace the wider evidence that substitution had not realistically been contemplated. BCAL’s complaint was an impermissible invitation to re-evaluate factual weight.

5. The EAT added that adverse inferences from absent witnesses are matters of common sense and context, not rigid legal rules. It also explained, obiter, that a tribunal need only invite submissions on a new and decisive issue, not every minor point in its reasoning. No remission arose.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 94.
• Employment Tribunal, Birmingham: Employment Judge Meichen held that the claimants were limb (b) workers. The judgment was entered in the Register and sent to the parties on 3 May 2023; no citation is stated in the judgment.