ESM0532 | Guide to determining status: an obligation to provide a substitute

Express and Echo Publications Ltd v Tanton

In Express and Echo Publications Ltd v Ernest Tanton (see ESM7210), it was found as a fact by the employment tribunal that the following clause in an unsigned ‘agreement’ genuinely reflected the true agreement between the parties:

‘In the event that the contractor is unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services.’

Mr Tanton therefore had an obligation to provide and pay for a suitable substitute should he be unable or unwilling to provide the services personally. This is hardly surprising given the emphasis here was not on the skills of the individual but on getting done the job of delivering evening newspapers.

Such a provision led the judge to the conclusion that Mr Tanton was not required to perform any services personally himself provided that he could find a suitable substitute. It was wholly inconsistent with a contract of service. The first condition for a contract of service as laid down by MacKenna J in the Ready Mixed Concrete case was therefore not satisfied.

This case shows that, where a worker does not have to perform the work personally but is under an obligation to provide and pay for a substitute to carry out the work, such a provision may be inconsistent with employment. This may well be the case where the emphasis is on the job and not on the individual’s skills.

Narich Pty Ltd v Commissioner of Pay-Roll Tax

By way of contrast the case of Narich Pty Ltd v Commissioner of Pay-Roll Tax [1984] ICR 286 was an Australian appeal to the Judicial Committee of the Privy Council. It concerned lecturers for Weight Watchers classes. Their contracts indicated that the lecturer had herself, or by a substitute approved by Narich, to lecture classes. Again there was an obligation to provide and pay for a substitute, but presumably because the substitute had to be approved by Narich, the Privy Council did not consider that this clause was one which negated the requirement for personal service. In fact the Court found they were employees as lecturers were ‘tied hand and foot’ as to how they had to deliver the lectures.