Case Name:

PREMIER GROUNDWORKS LTD v V JOZSA (2009)

Court:

EAT (Silber J, D Bleiman, BM Warman) 17/3/2009

Subject:

EMPLOYMENT

CELEX:

CONTRACT TERMS : CONTRACTS FOR SERVICES : HOLIDAY PAY : WORKERS : EFFECT OF CLAUSE PERMITTING DELEGATION OF SERVICES : reg.2(1) WORKING TIME REGULATIONS 1998

Summary:

A party with an unfettered right not to personally perform contractual obligations under a contract for services could not be a worker for the purposes of the Working Time Regulations 1998 reg.2(1), even where the person to whom the obligations were delegated had to meet certain conditions regarding his suitability to perform the services.

The appellant company (P) appealed against an employment tribunal's decision that the respondent (J) was a worker and was entitled to holiday pay.

J had contracted with P to carry out groundwork services.

The contract included a clause that gave J the right to delegate performance of the services to others, subject to certain conditions being met regarding the suitability of the person carrying out the services.

J brought a claim for unfair dismissal.

The tribunal found that J was not an employee and was not therefore entitled to claim for unfair dismissal, but that he was a worker, within the Working Time Regulations 1998 reg.2(1), and was entitled to holiday pay.

P submitted that J was not a worker within the meaning of reg.2(1), as he had not undertaken to personally perform any work or services.

HELD: Where a party had an unfettered right for any reason not to personally perform the contractual obligations under a contract, but could delegate them to someone else, he could not be a worker within the meaning of reg.2(1), even though the person actually performing the contractual obligations had to meet certain conditions, Express & Echo Publications Ltd v Tanton (1999) ICR 693 CA (Civ Div) followed.

The position would be different if the right not to perform the contractual obligation depended on some other event, such as where that party was unable to perform his obligations, MacFarlane v Glasgow City Council (2001) IRLR 7 EAT, James v Redcats (Brands) Ltd (2007) ICR 1006 EAT and Byrne Bros (Formwork) Ltd v Baird (2002) ICR 667 EAT considered.

The tribunal's order was set aside.

Appeal allowed

Appearances:

Counsel:

For the appellant: Mathew Gullick

For the respondent: Alan Bishop

Solicitors:

For the appellant: Curwens (Enfield)

For the respondent: Turner Coulson (Northampton)

References:

LTL 14/4/2009 (Unreported elsewhere)

Judgement:

Official - 13 pages

Document No.

AC0120369