Thread by @JasonBraier

1/ Sejpal v Rodericks Dental Ltd: a must-read case in which the EAT finds the worker status test is very simple, & then throws hand grenades under the reliance on an unfettered right of substitution as a way of denying worker status.
caselaw.nationalarchives.gov.uk/eat/2022/91
#ukemplaw

2/ The appeal concerns the question of whether a dismissed dentist was a worker under the ERA (s.230) and in employment under the EqA (s.83(2)). In simple terms, we're looking at questions of limb (b) worker status.

3/ The contractual position was one in which S had worked under an "Associateship Contract" throughout the relevant periods. It had a substitution clause (of which more later) & a clause saying it was a contract for services and not an employment contract.

4/ The ET found that S wasn't a worker. In doing so, it centred on a supposed lack of mutuality of obligation & an unfettered right to substitute - both of which the ET considered precluded limb (b) status being made out.

The EAT strongly disagreed.

5/ The EAT judgment starts with an incredibly helpful analysis of the law on worker status, which includes some points which will be trite & mundane, and a couple which will surprise & doubtless be analysed in future appeals.

6/ HHJ Tayler starts off by suggesting that worker status is really very simple to determine and that everyone who complicates the test has been misguided. Just apply the words of the statute.

7/ The judgment moves from there to setting out the statutory wording, the familiar 3 categories of Bates van Winkelhof, & what Autoclenz & Uber have to say about how to determine the true nature of the agreement. This will all be familiar stuff.

8/ Next, the EAT considers mutuality of obligation, noting that in reality it's a tool of pretty limited utility save when trying to determine if there's an umbrella contract (usually for continuous service purposes). When actually working, it's not a tool of assistance.

9/ It's here that things start to get interesting. The EAT disavows the argument that the irreducible minimum of obligation is the basis for finding an unfettered right to substitution to be inconsistent with worker status: why should it do so when the person is actually at work?

10/ This leads on to the EAT underplaying (obiter) the anti-worker-status role of an unfettered right. Whilst setting out the relevant parts of Pimlico Plumbers & Stuart Delivery, the EAT wonders aloud whether post-Uber there could be a worker with unfettered right to substitute.

11/ It's the throwing of an understated hand grenade into #ukemplaw. Should it really be the case that because a clever lawyer has provided for an unfettered right to substitute, that's the end of the worker status argument? Does that go against the statute's protective purpose?

12/ The EAT then moves on to a brief look at Westwood on the possibility of being both genuinely self-employed and a worker, & then the now traditional reference to DPP v Greenberg on being slow to conclude an ET has got the law wrong.

13/ Tackling the ET decision next, the EAT considered its approach to be at odds with the statutory test. The EAT urged a much simpler framework simply following the statutory wording. 7 grounds of appeal agains the ET approach were noted (though not all needed to be dealt with)

14/ As mentioned above, the ET looked at S's contract & found no mutuality of obligation. The ET decision was surprising & wrong given S's consistent work under a contract with the respondent. The EJ wrongly relied on Windle, which wasn't relevant here.

15/ The ET also was held to have taken a completely wrong approach to the true nature of the agreement between S & Rodericks. It focused on the contractual wording & found no evidence of sham in it nor any lack of bargaining power. It was an approach too kind to the respondent!

16/ The EAT moved on to substitution. The ET had found an unfettered right to substitute because of a right after 14 days' absence to arrange for a locum acceptable to the R & the PCT, & that this was inconsistent with the requirement for personal service.

17/ Part of the argument accepted was that fulfilment of regulatory requirements in limiting choice of a substitute didn't render it a fettered right. The ET was also persuaded that it should follow Sultan-Darmon where a near identical clause was found to be an unfettered right.

18/ The EAT found it wasn't bound by Sultan-Darmon. The clause not identical, but also Autoclenz & Uber had shifted focus from the contractual wording alone, & assessments of the agreement are fact specific so even an identical wording may be viewed differently in other cases.

19/ In any event, the EAT found the clause in S's case didn't show an unfettered right to substitute. It gave 5 reasons for this, all of which are of interest, but particularly the final 2.

20/ The EAT thus gave room for regulatory requirements to undermine the lack of fetter. Presumably that could also apply to the need for a substitute delivery driver to have a motorbike licence.

21/ & the EAT emphasised how post-Autoclenz & Uber there was a need to look at how/whether the clause had been operating might undermine arguments that the wording of an unfetterered right reflected the true agreement between the parties.

22/ In short, the EAT clearly doesn't like the way in which a contractual right for unfettered substitution has been used to undermine what would otherwise be worker rights, & has provided ammunition for all angles of attack against it.

23/ On disposal, the EAT remitted the case to a different ET to determine whether S carried out a profession or business undertaking & whether RD was a client or customer. It's sent back though with it being decided that there was a contract with personal work agreed by S.