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Parklane Plowden Podcast – A missed opportunity for workplace sexual harassment law

<!-- wp:paragraph --> <p>Listen to Parklane Plowden’s latest PLP Podcast – A missed opportunity for workplace sexual harassment law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, making changes to the remedy provisions in the Equality Act in relation to sexual harassment at work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden employment barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/roger-quickfall/">Roger Quickfall</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> explore the current protections for employees suffering sexual harassment and the journey behind the legislative change.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>They discuss why an opportunity was missed with the upcoming legislation in relation to protecting employees from third party sexual harassment such as that by clients of their employer and how employers and practitioners can prepare for when the new legislation comes into force.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Helpful resources and further reading:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><a href="https://www.legislation.gov.uk/ukpga/2023/51/contents">Worker Protection (Amendment of Equality Act 2010) Act 2023</a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://bills.parliament.uk/bills/3205">History of the progress of the Bill where the debates can also be found</a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://metoomvmt.org/">Me too </a></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Listen to the podcast below:</p> <!-- /wp:paragraph -->

Covid dismissals

<!-- wp:paragraph --> <p><strong>Refusing to work because of Covid? A dismissal for doing so will not necessarily be automatically unfair.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>In this article, PLP employment barrister Roger Quickfall considers whether a dismissal for a refusal to work for Covid reasons is automatically unfair following the recent case of Rodgers v Leeds Laser Cutting, the first Court of Appeal decision on Covid-related automatically unfair health and safety dismissals.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Shortly before Christmas, while many employment lawyers were distracted from their busy practices by the search for last-minute presents and the refusal of tree lights to work, former President of the EAT and now Vice-President of the Civil Division of the Court of Appeal, Lord Justice Underhill, was busy handing down the first CA decision considering Covid-related automatically unfair health and safety dismissals: <em>Darren Rodgers v Leeds Laser Cutting Ltd </em>[2022] EWCA Civ. 1659. As ever, in so doing, he provided helpful guidance as to the approach to be taken to such cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From 14/6/19, Mr Rodgers (“C”) was a laser cutting machine operator with 9 months’ service when the first Covid lockdown was announced. He worked in a large warehouse-type space which was well ventilated and about half the size of a football pitch. Typically, he worked there with no more than four colleagues.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 14/2/20, the Secretary of State for Health and Social Care declared that Covid was a <em>“serious and imminent threat to public health”.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Monday 23/3/20, the first national lockdown was announced. Those unable to work from home, such as machine operators like C, could leave home for work. The same day, an external professional carried out a Covid risk assessment at C’s workplace on behalf of C’s employer (“R”) which resulted in R giving its employees recommendations regarding hand washing, face covering and social distancing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The size of C’s workplace and the small number of employees working there meant that C could socially distance for the majority of his role. Face masks were supplied. Colleagues were encouraged to wash their hands regularly, wear face masks and socially distance. They were also encouraged not to congregate during breaks and to stagger clock-out times, but, to the frustration of management, these latter two recommendations tended to be ignored</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Tuesday 24/3/20, R announced it would remain open fabricating materials for the NHS. C continued to work for the remainder of that week without objection and without raising any Covid or other health and safety concerns to R. By Friday 27/3/20, C had not formed any intention not to return to work the following week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Saturday 28/3/20, C phoned NHS 111, reported symptoms of Coronavirus and was asked to isolate for a week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Sunday 29/3/20, C sent a text to his manager stating that he had no alternative but to stay off work until the lockdown had eased. He mentioned his two sons. One was aged 5 years with sickle cell anaemia – a condition giving rise to a high degree of vulnerability from Covid. C believed his son would be extremely poorly if he contracted Covid.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C’s other son was aged 7 months and it was unknown whether he had an underlying health condition putting him at high risk from Covid. C did not mention the request by NHS 111 to isolate, nor that he may have any symptoms of Covid, nor whether he had any Covid concerns relating to work. C’s manager replied: “ok mate, look after yourselves”. The same day, C’s friend and colleague broke his leg.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Monday 30/3/20, C took his friend with the broken leg to hospital by car, despite having been told to isolate. Both wore masks. C’s friend sat in the back. C did not accompany his friend into the hospital itself. C did not attend work after 27/3/20, he did not contact work after 29/3/20.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A month later, on 24/4/20, C texted his manager alleging he had been sacked for self-isolating. On 26/4/20, C was sent his P45 and dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The employment tribunal found as a fact that C did not believe there was a serious and imminent danger caused by Covid at work. C’s decision to stay off work was not directly linked to his working conditions; he did not feel seriously at risk at work. Rather, C’s decision to stay off work related to his concerns about the virus in general in the community at large and his vulnerable young children.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Claim</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C did not have the two years’ service necessary for a claim of ‘ordinary’ unfair dismissal. He claimed in the employment tribunal that his dismissal was automatically unfair pursuant to sections 100(1)(d) and/or (e) of the Employment Rights Act 1996 (“ERA”). His claim was dismissed. At the EAT, C abandoned his claim pursuant to s. 100(1)(e). The EAT dismissed his appeal in relation to s. 100(1)(d). The CA also dismissed C’s appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Central to the reasoning of the dismissal of the claim and the dismissal of the appeals was the factual finding that C did not believe there was a serious and imminent danger from Covid in the workplace.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 100(1)(d) ERA provides:<br><em>(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—<br>….<br>(d) in circumstances of danger which the employee reasonably believed to be serious and imminent<br>and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Guidance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA held that, in a case concerning this section, the Tribunal must decide the following questions:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1","start":1} --> <ol type="1" start="1"><!-- wp:list-item --> <li>Did the employee believe that there were circumstances of serious and imminent danger at<br>the workplace? i.e. (1) that a danger existed in the workplace, and (2) that it was serious and imminent. If so:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Was that belief reasonable? If so:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Could they reasonably have averted that danger? If not:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Was that the reason (or principal reason) for the dismissal?</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Since C did not believe that there was a serious and imminent danger caused by Covid at work, the remainder of the questions did not arise for determination in this case. However, in case they did, it was found that if C had believed that Covid was a serious and imminent danger at work, his belief would not have been reasonable due to working in a large and well-ventilated space with a small number of colleagues, and his ability to wear a mask, wash his hands regularly and socially distance for the majority of his work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C was also able to avert the Covid risks by mask wearing, regular handwashing, social distancing and, where the latter was not possible, by refusing any tasks which removed his ability to socially distance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA also made the following helpful observations of wider relevance:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1","start":1} --> <ol type="1" start="1"><!-- wp:list-item --> <li>Section 100(1)(d) ERA can apply to the kinds of dangers posed by the pandemic.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The government declaration that Covid constituted a serious and imminent threat to public health was not conclusive in relation to the statutory test which concerns the employee’s belief about dangers at work.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The section covers serious and imminent danger arising from some problem with the workplace premises, equipment, systems of work or the risk of employees infecting each other with a disease.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Covid could potentially amount to circumstances of serious and imminent danger in the workplace, but s. 100(1)(d) ERA does not automatically protect any employee refusing to work simply by virtue of the pandemic.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The danger must arise at the workplace, but it need not be exclusive to it. The employee will be protected even if the same danger is present inside and outside the workplace. However, the employee must believe that they are subject to the danger due to being at work.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If an employee absents themselves to avoid the danger in the workplace (whether or not it is exclusive to the workplace or real or merely perceived) – and not for some other reason – they will be protected from dismissal for that reason.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although an employee working in a large well-ventilated space with few colleagues, who can wear a mask, socially distance and regularly wash their hands, is unlikely to be protected from dismissal for refusing to work for Covid reasons, the situation is potentially very different for those working in close proximity to others, such as in a cramped office; particularly if the employer has not sought to mitigate Covid-related risks. The focus of enquiry is on the reasonable belief of the employee as to the extent of the danger in the workplace and whether they can reasonably avert the danger. Practitioners will need to obtain evidence addressing the 5 questions set out above.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Disclaimer:</strong><br><em>This article is not to be treated as legal advice and it must not be relied upon for the giving of advice. The author accepts no responsibility for any loss or consequential losses incurred as a result of any reliance on any matters contained herein.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br></p> <!-- /wp:paragraph -->

Sophie Firth and Roger Quickfall have successfully represented the claimant, Dr Al-Jehani in her whistleblowing claim

<!-- wp:paragraph --> <p><strong><em>Dr Rajai Al-Jehani&nbsp;v (1) The Royal Free London NHS Foundation Trust (“the Royal Free”)</em></strong> and <strong><em>(2) University College London (“UCL”)</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden employment barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-firth/" target="_blank" rel="noreferrer noopener">Sophie Firth</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/roger-quickfall/" target="_blank" rel="noreferrer noopener">Roger Quickfall</a> have successfully represented the claimant, Dr Al-Jehani, in her whistleblowing claims against the Royal Free.&nbsp;The case has attracted media attention and was picked up by the legal editor of The Times this week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claim involved a whistleblowing scientist, Dr Al-Jehani, employed by the Royal Free to work for UCL.&nbsp;The scientist complained about the alleged commercialisation of human liver tissue samples.&nbsp;She was made redundant principally because of her complaints.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was a complex and unusual case involving over 100 alleged protected disclosures and a dozen alleged detriments.&nbsp;There were nearly 3000 pages of documents.&nbsp;11 witnesses gave live evidence over 7 days by video-link with Central London Employment Tribunal in June 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Firth dealt with the pleadings and procedural matters. Mr Quickfall dealt with the liability hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Al-Jehani was a biomedical scientist employed by the Royal Free for 12 years to work in UCL’s Institute for Liver and Digestive Health (“ILDH”).&nbsp;Dr Al-Jehani carried out molecular DNA research into liver cancer for which she needed samples of liver tissue (both cancerous and healthy). Dr Al-Jehani believed that her access to samples was obstructed because they were being used by some of her colleagues for commercial profit in preference to not-for-profit scientific research.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Al-Jehani believed that human tissue was being commercialised by some of her UCL colleagues.&nbsp;She complained about this to her employer in November 2017. An investigation into her complaints concluded in November 2018 but Dr Al-Jehani was not told the outcome until November 2019.&nbsp;In February 2020, Dr Al-Jehani submitted a grievance repeating her whistleblowing complaints and complaining of a cover-up.&nbsp;The Royal Free passed the grievance to UCL to investigate but they declined because Dr Al-Jehani was not their employee.&nbsp;In June 2020, Dr Al-Jehani was made redundant subject to her notice period.&nbsp;She was dismissed in September 2020.&nbsp;Dr Al-Jehani appealed against the dismissal decision.&nbsp;The appeal was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Al-Jehani succeeded in establishing that her redundancy dismissal was unfair because the principal reason for the dismissal was that Dr Al-Jehani was a whistleblower.&nbsp;Dr Al-Jehani also established that she suffered 6 detriments at the hands of the Royal Free because she was a whistleblower.&nbsp;These included the resumption of a paused redundancy consultation process, being told it would be “<em>better for her wellbeing</em>” to leave ILDH, a delay of a year before being informed that an investigation of her whistleblowing complaints had concluded during which she was misled into believing that the investigation was ongoing, a failure to deal with her grievance and the dismissal of her appeal against the redundancy decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claims against UCL were dismissed because they were out of time.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Compensation will be determined at a later date.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Read more on the case: <a href="https://www.thetimes.co.uk/article/dr-rajai-al-jehani-unfairly-dismissed-over-claims-about-human-tissue-trade-06c6sdmlr" target="_blank" rel="noreferrer noopener">Dr Rajai Al-Jehani unfairly dismissed over claims about human tissue trade,</a> <em>The Times</em>.</p> <!-- /wp:paragraph -->

Worker status and the obligation of personal performance 🗓

<!-- wp:paragraph --> <p><strong><em>In this article, Parklane Plowden Barrister, Roger Quickfall, considers the approach to determining when a limited right of substitution is consistent with the obligation of personal performance following the recent guidance of the Court of Appeal in </em>Stuart Delivery v Augustine<em>.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Introduction</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 19/10/21, the Court of Appeal (“CA”) delivered its latest decision on worker status: <em>Stuart Delivery Ltd v Augustine</em> [2021] EWCA Civ 1514 (“<em>Augustine</em>”).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On this occasion, the CA was dealing with the obligation of personal performance when there is a fettered right of substitution.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue on appeal was whether an employment tribunal (“ET”) was entitled to find that a self-employed courier (“C”) delivering goods by moped for Stuart Delivery Ltd (“R”) was a ‘worker’ for the purposes of s. 230(3)(b) of the Employment Rights Act 1996 (“ERA”).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The facts</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>R had developed a technology platform connecting couriers with retailers via an app.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers who entered into arrangements with R could accept individual delivery jobs and be paid a fixed fee for that job by reference to the distance travelled and the mode of transport.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers could also sign up for one or more time slots via the app.&nbsp; The slots covered the zones with the highest concentration of users at the times of projected highest demand.&nbsp; Couriers were encouraged to sign up for these slots and 93% of couriers worked on these slots.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once signed up for a slot, couriers committed to be in a particular zone for 90% of the time of the slot, not logging off for more than 6 minutes per slot and not refusing more than one delivery job during a slot.&nbsp; If they satisfied these requirements, they were guaranteed a minimum £9 an hour for each slot (regardless of whether they undertook any deliveries).&nbsp; If they did not satisfy these requirements, they would not receive the minimum payment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers were also paid delivery rewards if they achieved a certain number of deliveries in a week, but they would not qualify for the reward if they failed to take up two or more slots in a week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was no written substitution clause.&nbsp; However, if a courier did not wish to work a slot he had accepted, he could notify other couriers on R’s app who could opt, if they chose, to fill the unwanted slot.&nbsp; C did not know which courier would be taking up the slot and he could not put forward any given individual.&nbsp; If one of the couriers did not take up the slot, C would have to do it or face penalties for missing the slot.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The right of substitution was conditional upon another courier on R’s app agreeing to take up C’s slot.&nbsp; The other courier had to have the same mode of transport and was subject to the same requirements as C of having to stay in the area for 90% of the time, not logging off for more than 6 minutes per slot and not refusing more than one delivery job per slot, to avoid losing the guaranteed payment and suffering the other consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA agreed with the ET and the EAT that this was not a sufficient right of substitution to remove the obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The law</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As employment lawyers are aware, the definition of a worker in s. 230(3)(b) ERA provides, <em>inter alia</em>, that the individual “<strong><em>undertakes to do or perform personally any work or services for another party to the contract …</em></strong>”.&nbsp; This is known as the obligation of personal performance.&nbsp; Anyone seeking to establish themselves as a worker must establish that they are subject to the obligation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If the individual must perform the work themselves, there is no difficulty: there is an obligation of personal performance.&nbsp; If the individual can send whoever they wish to carry out their work, i.e. the right of substitution is unfettered, there is also no difficulty: there is no obligation of personal performance.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The difficulty arises where the right of substitution is fettered or conditional, i.e. limited or occasional.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Whether a conditional right of substitution is consistent with personal performance&nbsp;</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As was held by the CA in <em>Pimlico Plumbers v Smith</em> [2017] EWCA Civ 51, [2017] ICR 657 (“<em>Pimlico Plumbers</em>”) (§84), whether a conditional right of substitution is consistent with personal performance depends on the conditionality; in particular, the nature and degree of any fetter on the right of substitution.&nbsp; In other words: the extent to which the right is limited or occasional.&nbsp; In the same paragraph, the CA gave three examples:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><em>a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. </em><em></em></li><li><em>a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. </em><em></em></li><li><em>a right to substitute only with the consent of [the employer] who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.</em><em></em></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>On appeal in <em>Augustine</em>, R argued that the ET wrongly found that C’s right of substitution was consistent with (iii) above when it should have found that it was consistent with (ii).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The above examples were stated by the Master of the Rolls and approved of by the Supreme Court.&nbsp; There has therefore been a tendency for practitioners to regard them as categories into which the facts of a case can be shoehorned to determine whether there is an obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the CA in <em>Augustine</em>, held that this was the wrong approach because it was unreal to attempt to shoehorn the facts of a case into one of the examples to see whether a right of substitution was consistent with the obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA held that, to treat the examples as categories, addresses the wrong issue.&nbsp; The issue is not whether the case can be fitted into one of the examples; it is whether there is an obligation of personal performance (§38).&nbsp; Where the right of substitution is conditional, the issue is whether the nature and degree of any fetter on the right or ability to appoint a substitute is inconsistent with any obligation of personal performance (§55).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>An important factor is the dominant purpose of the work arrangement when there is a limited right of substitution.&nbsp; Is the employer only concerned that the work is done and uninterested in who does it? Or do they want the individual they have contracted to do it?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As the SC explained in <em>Pimlico Plumbers</em> <em>v Smith</em> [2018] UKSC 29, [2018] ICR 1511, at §32, where there is a right of substitution, it may be helpful to assess its significance by reference to whether the dominant feature of the contract remains personal performance on the part of the person contracted to carry out the work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Pimlico Plumbers</em> the SC proceeded on the basis (without deciding) that the claimant had the right to appoint another Pimlico plumber to do particular work where the claimant had subsequently been offered a more lucrative job.&nbsp; The SC held that this was a significant limitation on the right of substitution and was the converse of the situation in which the employer was uninterested in the identity of the substitute, provided only that the work was done.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Augustine</em>, the system set up by R was intended to ensure that C carried out the work and, in particular, that he turned up for the slots for which he had signed up and did the delivery work during those slots.&nbsp; That was necessary for R’s business model.&nbsp; The limited right or ability to notify other couriers via the app that he wished to release his slot for take up by others was insufficient to remove from him the obligation of personal performance.&nbsp; This was not a situation in which R was uninterested in who performed the work.&nbsp; R wanted to ensure that the courier who took the slot was subject to the same constraints as C to ensure that there were sufficiently reliable couriers available in hot zones at peak times.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA observed that there is no rule that a right or ability to substitute only from R’s pool of operatives is necessarily consistent with personal performance.&nbsp; But the CA acknowledged that the courts have recognised that this is a conclusion that employment tribunals can reasonably reach in broadly similar circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the CA observed that, in considering whether there is an obligation of personal performance, it may not be necessary to determine whether the substitution arrangements are contractual or merely a practice permitted by R.&nbsp; It was observed that, following <em>Uber v Aslam</em> [2021] UKSC 5, [2021] ICR 657 (“<em>Uber</em>”), the question may be whether, looking at the contractual terms and the way the arrangements operated in practice, there was an obligation of personal performance given the extent and nature of any practice permitting substitution.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Uber</em> it was held that the contract is not the starting point in determining employment / worker status because employment rights are not contractual but statutory.&nbsp; Whether an individual has statutory rights is therefore a matter of ‘statutory’ rather than ‘contractual’ interpretation.&nbsp; It is therefore necessary to have the purpose of the relevant statutory provisions in mind, i.e. the protection of the vulnerable / those in a position of dependency on the employer, when determining whether an individual has particular statutory rights.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Conclusions</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When considering whether an individual is a ‘worker’ where there is a limited ability to appoint a substitute, the issue is whether the nature and degree of any limit is consistent with any obligation of personal performance.&nbsp;&nbsp; In addressing this issue, it is necessary to consider the extent to which the employer is interested in who carries out the work.&nbsp; Trying to shoehorn the facts into one of the so-called <em>Pimlico</em> examples will not be conclusive.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Roger Quickfall</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Barrister at Parklane Plowden</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>November 2021</p> <!-- /wp:paragraph -->