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Glasgow City Council v (1) Mrs MacFarlane (2) Mrs Stacy Skivington 5 June 2000 EAT The appeal raises the issue of whether the two Appellants, qualified gymnastic instructors, were employees of the City Council or self-employed. In July 1998, the Appellants lodged a claim for unfair dismissal and constructive dismissal. The Council required them to sign a new contract but, the appellants contended that the new contract would effectively make them self-employed. The Council contended that they had been self-employed all along. The tribunal went through the facts of the situation and then came to a provision to which great importance was attached as will later appear; the Tribunal held:- "If for any reason, one of the applicants was unable to take a class, she would contact a replacement from the register of coaches maintained by the respondents, and arrange for her class to be covered by a member on the register." It was the applicant who was enabled to select the replacement coach rather than the Council, but the substitute had to come from the Council's list. The arrangement for the replacement was to be made by the applicant not the Council. The provision for substitution would only be available where an applicant was "unable" to take a class, although the inability could be "for any reason". The tribunal were of the opinion that the picture formed by the accumulation of detail was that the applicants were employees except, that is, for one factor, that a substitute could be provided. Following the decisions in Ready Mix Concrete (South East) Ltd v The Minister of Pensions and National Insurance [1968] 2 Q.B. 497 and in Express and Echo Publications Ltd v Tanton [1999] IRLR 367 the Tribunal stated that: "…The last mentioned case makes it clear that a contract of employment must necessarily contain an obligation on the part of the employee to provide his services personally. On the evidence, the applicants could arrange for substitutes to attend on their behalf and this right is inconsistent with the existence of the contract of employment, and we feel, therefore, bound to refuse the applicant's claims." At the Employment Appeal Tribunal the Tanton case was distinguished for the following cumulative reasons: 1.the appellants in this case could not simply choose not to attend or not to work in person. Only if an Appellant was unable to attend could she arrange for another to take her class. 2.the appellants could not provide just anyone who was suitable as a replacement for her but only someone from the Council's own register. To that extent the Council could veto a replacement and also could ensure that such persons as were named on the register were persons in whom the Council could repose trust and confidence. 3.the Council itself sometimes organised the replacement. 4.the Council did not pay the appellants for time served by a substitute but instead paid the substitute direct. There is no finding as to what the substitutes were paid nor that they were paid the same as the appellants nor that the appellants had any say in what the substitutes were paid. These four grounds in the view of the EAT provided ample reasons for the Tanton case to be distinguished but, unfortunately only the last of the four was considered by the Tribunal in this case The EAT continued "We note that in the Ready Mixed Concrete (South East) Ltd case, MacKenna J, in a passage very frequently relied upon, said with our emphasis:- "Freedom to do a job either by one's own hands, or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Mr Atiyah's Vicarious Liability in the Law of Torts (1967), pp.59-61, and the cases cited by him." The EAT accordingly allowed the appeal. The Tribunal's decision is set aside and the preliminary determination is remitted to the same Tribunal as before (subject to the exceptions mentioned) and it was directed that at the further hearing fresh evidence may be called. Note from the author: The limitations on substitution in this case are very restrictive and may not be representative of all cases. |
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