BCA Logistics Ltd v Brian Parker & Ors

The Employment Appeal Tribunal dismissed the employer's appeal against an Employment Tribunal finding that a cohort of drivers were "workers" for the purposes of section 230(3)(b) of the Employment Rights Act 1996, regulation 2(1) of the Working Time Regulations 1998 and section 54(3)(b) of the National Minimum Wage Act 1998. Central to the decision was whether a contractual substitution clause (clause 1.7) was "genuine"; the ET had found it was not because, in practice, substitution was an unrealistic possibility. The EAT held that the ET had correctly applied the legal principles from authorities such as Autoclenz and Consistent Group v Kalwak and had not misdirected itself on the law concerning substitution, adverse inferences from non-called witnesses, or the weight to be given to evidence obtained with litigation in mind.

The two principal grounds of appeal — (1) that the ET wrongly criticised the employer for not calling current or recent drivers and thereby placed a false burden or drew an adverse inference, and (2) that the ET improperly discounted evidence of substitution enquiries because those enquiries were prompted by litigation — were rejected. The EAT concluded any reference to a "striking gap" of driver witnesses was a passing observation and not material to the ET's reasoning, and that the ET was entitled to place little weight on the post-claim substitution enquiries.

This appeal arose from an Employment Tribunal hearing in which 422 non-employee drivers engaged by BCA Logistics (BCAL) sought to establish "worker" status and associated statutory rights. The claimants alleged that, despite a written contractual right to provide substitutes (clause 1.7), the right was not "genuine" and that, taken with other contractual and practical indicia, they were limb (b) workers.

Procedural posture: The ET (Birmingham, judgment sent 3 May 2023) found the drivers to be "workers". BCAL appealed to the EAT arguing legal errors about how the ET treated evidence; the EAT heard argument on 11–12 June 2025 and handed down judgment on 4 July 2025.

Relief sought: The claimants sought declaration of "worker" status and the rights that flow from it under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

Issues framed by the court:

• whether the contractual substitution clause was a genuine contractual term such that claimants lacked an obligation to provide personal service;
• whether the ET erred in treating the employer's failure to call current or recent drivers as a damaging absence of evidence or adverse inference;
• whether the ET lawfully discounted substitution-related material on the basis that it had been obtained with the litigation in mind;
• related procedural questions about the drawing of adverse inferences, the ET's duty to give parties notice of matters relied on, and the circumstances in which the EAT should remit a case.

Court's reasoning and outcome: The EAT reviewed the governing legal principles on substitution clauses and worker status and examined the ET's detailed factual findings about BCAL's business model, training, equipment, insurance, trade plates, service level agreements and working practices. The ET's central factual findings were that over 25 years no self-employed driver had used a substitute, BCAL had no processes, training or arrangements for substitutes, practical obstacles (insurance, trade plates, data protection, equipment control and customer risk) made substitution unrealistic, and that some evidence the employer relied on arose only after litigation began. The EAT concluded that (i) the ET did not misdirect the law on substitution, (ii) the "striking gap" remark about not calling current drivers was a passing observation and not an adverse inference or a rebadging of the burden of proof, and (iii) the ET was entitled to place limited weight on substitution enquiries that post-dated the claims. The appeal was dismissed.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had correctly applied the law on contractual substitution and worker status, had given lawful and adequately reasoned weight to the evidence (including documentary material and witness credibility), and had not misdirected itself by drawing adverse inferences or placing an improper burden on the employer. Any reference to a "striking gap" in witness evidence was a passing observation and not material to the ET's reasoning; evidence of substitution enquiries obtained after proceedings began could be given little weight. Accordingly the ET’s finding that the claimants were "workers" stands.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (Birmingham) judgment entered and sent to the parties on 3 May 2023. Employment Appeal Tribunal neutral citation [2025] EAT 94 (Case No EA-2023-000615-NK). No further appellate history stated in the judgment.