United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0195_12_2609.html
Cite as: [2012] UKEAT 195_12_2609, [2012] UKEAT 0195_12_2609

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Appeal No. UKEAT/0195/12/ZT

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 26 September 2012

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

UK MAIL LTD APPELLANT

MR J CREASEY RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR NICHOLAS JEW

(Solicitor)
DLA Piper UK LLP

Victoria Square House

Victoria Square

Birmingham

B2 4DL

For the Respondent

MS DENISE DOLAN

(Representative)

Employment Management Solutions Ltd

43-45 Hesketh House

Portman Square

London

W1H 6HN

SUMMARY

JURISDICTIONAL POINTS – Worker, employee or neither

As a matter of construction of the contract, the Claimant was not required to perform work personally since he had an unfettered right to send others, provided they met the employer’s conditions as to suitability: Premier Groundworks Ltd v Jozsa applied.

There is no reason to further taxonomise borderline employment cases: Westwood [2012] EWCA Civ 1005, paragraph 1; Clyde [2012] EWCA Civ 1207.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about the definition of a worker for the purposes of enforcing certain statutory rights. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a PHR Judgment of Employment Judge Goodrich, sitting alone at East London hearing centre, sent with reserved reasons on 19 January 2012. The PHR was to determine whether the Claimant was a worker of the Respondent. The Judge decided he was not an employee but was a worker. The Respondent appeals. The issue, therefore, was as to the classification of Mr Creasey’s status. The appeal came before Mr Recorder Luba QC on the sift, who considered this matter was strongly arguable.

The legislation

3. The relevant provisions of the legislation are not in dispute. Employment Rights Act 1996 section 230 provides:

“(1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act ‘worker’ […] means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried out by the individual;

and any reference to a worker’s contract shall be construed accordingly.”

4. The right to bring various claims depends on whether you are an employee or a worker, and the purpose of the present proceedings is to determine a gateway for the Claimant in respect of the rights he seeks to enforce as a limb (b) worker. These include claims under the Working Time Regulations and under the contract jurisdiction of the Employment Tribunals Act 1996, section 3. There is no material difference in the provisions relating to the status.

The facts

5. The proceedings were initially set up to determine whether the Claimant was an employee. That turned out to be a red herring, because the Claimant in his claim form had accepted he was not an employee and asserted he was a worker. So Employment Judge Goodrich, at the outset of the hearing, discussed with Mr Nicholas Jew, who represents the Respondent, and Ms Denise Dolan, a lay representative representing the Claimant, the expeditious way forward. It was agreed that the scope of the hearing would be extended to include whether the Claimant was a worker. Much of the Judgment deals with the employee status, but, as is clear from the pleadings, that really was not an issue. There is an element of inconsistency, it is said by Mr Jew, in the Judge’s approach to his findings, on the one hand, on employment status and, on the other, worker status, to which I shall return.

6. The Claimant had been engaged (I shall use that term throughout) as a van driver for a period which began in 1995 or 1999. The Respondent is one of the largest express delivery companies in the UK, delivering mail, packets, parcels and pallets around the world. At its Docklands, East London depot the manager was Ms Mead, responsible for a number of the persons on site, of whom a large proportion were unarguably employees (administrative staff, warehouse staff and so on). Then there were people like the Claimant, of whom there were about 56. They were all classified by the Respondent as subcontractors. The nature of the relationship was regulated by a document called the subcontractors’ agreement. This is signed on 1 May 2008 by the Claimant. It is his third such agreement, and it is common ground that this is the document that begins the analysis of the relationship. I will cite the terms from the agreement, because the Judge did not extract what I regard as certain important aspects. The critical terms are these:

“(A) Interpretation

In this Agreement the following terms will have the following meanings: […]

“Personnel”

those of your agents, servants, employees and other individuals, engaged in the provision of the Services;

“Services”

the collection, scanning, transport and delivery of consignments as set out in this Agreement […].

(1) During this Agreement you will supply the Services to us on the terms set out in this Agreement and in accordance with the Service Level Agreement. We expect to be provided with the Service in a uniformly high standard and quality by both you and the Personnel. By entering into this Agreement you agree to use you best endeavours to maintain the highest standard with all matters related to the services and our brand/trade name or that of any Group Company brand/trade name. You also agree to procure that the Personnel do the same in respect of the standard of Services they provide on your behalf.

(2) For security purposes only it is a condition of your appointment that you and the Personnel have passed our security vetting procedure and any failure by you to notify us of any changes related to your status or the Personnel’s status will be deemed a Material Breach of this Agreement.

(3) Your appointment is not exclusive so that we may in our absolute discretion and at any time appoint another person or persons to carry out some or all of the services which are the same as the Services which could have been provided by you.

(4) We are under no obligation to provide or offer work to you and/or the Personnel. You agree that there may be times when you are not required to provide the Services.

(D) Your Obligations

(1) You will at all times during the term of this Agreement: provide the Services and comply with any Vehicles requirements in accordance with the terms and conditions of this Agreement and the Service Level Agreement. You agree that you are aware of the scope of the Services and warrant that both you and any Personnel shall have the necessary skills and experience to provide them in line with our standard requirements.

(2) You may at any time provide the Services through the Personnel on condition that the Personnel are approved by us in writing prior to such person commencing any of the Services (such consent not to be reasonably withheld) and where such approval is provided, you agree to procure that the Personnel will be bound by the same obligations as you under this Agreement. For the avoidance of doubt, we are reserving the right to approve any Personnel simply to ensure that they have appropriate driving qualifications and that they will not adversely affect Mail integrity. […]

(6) Vehicle(s):

(a) You will be responsible for ensuring that you and the Personnel at all times whilst provided the Services possess a valid UK driving licence. We may periodically request copies of driving licences and other relevant documentation from you and/or the Personnel. Where the loss of a licence adversely affects your ability to provide the Services, this Agreement may be terminated on written notice with immediate effect by us.

(b) Should the Services you perform be provided utilising a goods vehicle then you will ensure that you and the Personnel (if applicable) hold a licence to drive a goods vehicle which is valid under the Goods Vehicle (Licensing of Operators) Act 1995. […]

(H) Status and Tax Liabilities

(1) You agree that nothing in this Agreement or Service Level Agreement will create a joint venture and/or relationship of agency, partnership or employer and employee between us. As such you agree that you and the Personnel will have self‑employed status in respect of your relationship with us and as such will not be entitled to any wage, salary, pension, bonus, sickness or holiday pay, payment or any other cash or non‑cash benefit from us. The Personnel will be your employees and/or workers and as such you will be responsible for all income tax liabilities, National Insurance or similar contributions or any other taxation in respect of the Personnel and the Fees.”

7. Throughout the agreement the phrase “you and the Personnel” occurs. It is clear that “the Personnel” are anybody whom the Claimant chooses to be his agent, servant, employee or an individual who is providing services, and the services are those defined in the agreement.

8. The Judge began to look at the way the work was being done, quite properly in order to construe the substitution clause. A person who fits the definition of “Personnel” is called in the trade a “subsubbie” – that is, a subcontractor of the subcontractor, a substitute. The Judge found that when a subsubbie was to be sent along the following circumstances prevailed:

“28 For those that did use substitutes a procedure was required, as indicated in the contractual document referred to above. The van driver classified as a subcontractor needed to obtain the consent of the Respondent in order to engage what the Respondent described as a ‘subsubbie’. A letter was provided to the subcontractor advising them on what was required in order to obtain approval. The Respondent advised the subcontractor that they might base their policy of engaging a ‘subsubbie’ in a similar manner to how the Respondent engage a ‘subcontractor’. This entailed:–

28.1 The completion of an application form.

28.2 Proof of the individual’s right to take up paid employment within the UK.

28.3 Proof of identification and residence.

28.4 Completion of a security declaration form.

28.5 Receipt of a Scottish basic disclosure.

28.6 Five years work [sic] history without gaps.

28.7 Five years work [sic] references.

28.8 Character references taken up orally and in writing, each covering a two year period within the previous period.

29. The ‘subcontractor’ was then required to declare in writing that he or she and their employees, agents or subcontractors had satisfactorily passed screening and vetting in accordance either wi9th the Respondent’s procedure or one that they had developed which was their equivalent.

30 The Claimant was not provided with the standard letter required in order for a driver to provide a substitute ‘subsubbie’. Nor was he aware that a few of the drivers did use substitutes.”

9. It is common ground that the Claimant did not know about the clause I will describe as the substitution clause under clause D(1) and did not himself appoint a substitute. The consequence of his not attending for work is that he makes no money that day, the Respondent can appoint a substitute and charge him for it. It is described as a financial disadvantage. In the Tribunal and here, the word “substitute” for Mr Creasey has been used, although there never in fact was such a person.

10. The Judge was careful to set out the nature of the work done by the Claimant and came to the conclusion that he was not an employee, not an issue that fell to be decided. He had addressed himself to the leading authority Ready Mixed Concrete (South East) Ltd v Ministry of Pensions and National Insurance [1968] 2 QB 597, in the Judgment of MacKenna J, in the following terms:

“A contract of service exist [sic] if these three conditions are fulfilled.

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the others control [sic] in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service […].

Freedom to do a job either by ones own hands [sic] or by another, is inconsistent with a contract of service, though a limited or occasional power of delegation may not be.”

11. The Judge then extracted the common ground between the advocates in putting forward three propositions that were not contentious:

“(i) As Stephenson LJ put it in Nethermere (St Neots) Ltd v Gardiner [1984] IRLR 240, 241, there must […] be an irreducible minimum of obligation on each side to create a contract of services.

(ii) If a genuine right of substitution exist [sic], this negates an obligation to perform work personally and is inconsistent with employee status: Express and Echo Publications Ltd v Tanton [1999] IRLR 367 […].

(iii) If a contractual right, as for example a right to substitute, exist, it does not matter that it is not used. It does not follow from the fact that a term is not in force that such as term is not part of the agreement: see e.g. Tanton […].”

12. To proposition (ii) can be added the word “worker”, because Ms Dolan, before me, accepts that a genuine right of substitution is inconsistent with worker status as well as employee status, and a correction can be made to proposition (iii) where the words “in force” should be replaced by “enforced”. The Judge directed himself in accordance with the Judgment of the Supreme Court in Autoclenz v Belcher [2011] IRLR 820 in the following terms:

“Where there is a dispute as to the genuineness of a written term in an employment contract, the focus of the enquiry must be to discover the actual legal obligations of the parties. All the relevant evidence must be examined, including: the written agreement itself, read in the context of the whole agreement; how the parties conduct themselves in practice; and their expectations of each other. Evidence of how the parties conduct themselves in practice may be so persuasive that an inference can be drawn that the practice reflects the true obligations of the parties, although the mere fact that the parties conduct themselves in a particular way does not of itself mean that the conduct accurately reflects the legal rights and obligation. For example, there could well be a legal right to provide a substitute worker and the fact that the right is never exercised in practice does not mean that it is not a genuine right.

The relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed. The circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. Organisations which offer work or require services to be provided by individuals are frequently in a position to dictate the written terms which the other party has to accept. In practice, in employment cases, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so.”

13. The conclusion the Judge reached on the central issue was that the substitution clause did not disentitle the Claimant to the status of worker. He held that the true agreement between the parties was as embodied in the document; that it was a genuine right in the Claimant to appoint a substitute (see paragraph 77). Knowledge of his right to do so, and, by extension, his actual exercise of the right, was neither here nor there. A small cadre of the other drivers did use the substitution clause. The Judge also, in passing, recorded the following:

“73. The Claimant, although he was self employed for tax purposes, the relationship between him and the Respondent was not by virtue of the contract that of a client or business undertaking carried on by him. He did not carry out work for anyone else over the course of over 10 years of working full time for the Respondent. He did not have anyone work for him. He carried out the work required of him by the Respondent in the manner that they required him to carry it out. He was in the weaker bargaining position. The Respondent is a large organisation and if the Claimant did not sign the agreement and perform the work according to the Respondent’s requirements, his work for them would be brought to an end. In most respects, the relationship was similar to that of an employee working for a large employer.”

14. He formed the conclusion the Claimant was not an employee, and went on to say this:

“74. I have concluded that, with the boundary set lower in favour of a putative worker’s favour, he was a worker of the Respondent within the meaning of section 230(3)(b) and Regulation 2 Working Time Regulations. I do so for the reasons set out above and because the nature of the relationship between the parties was for the Claimant to provide personal service to the Respondent. Although, by virtue of the written agreement, he had a right to send a substitute, it was a right that he did not appreciate he had; and had no intention of using. When, for example, he was off work sick, he did not have anyone he would seek to call upon, but accepted the Respondent’s financial penalty imposed on him. Any right that the Claimant might have had to engage a substitute, if he had appreciated he had such a right, was one that was not exercised over the course of many years. […]

78. With the boundary mark set higher for a Claimant to satisfy the status of employee, I have concluded that he did not reach that boundary mark. There was the possibility, with the provisos I have set out at paragraph 77 above, for him to engage a substitute to provide the work. The written agreement did not require him to provide his services personally, and the fact that a few individuals did use a substitute suggests that the terms were not a sham, even if the Claimant did not appreciate the significance of them.”

15. A hearing was then set up for the Claimant’s full case, reserved to the Judge himself.

The Respondent’s case

16. I will deal first with the procedural matter raised by Mr Jew who contended that the Judge had erred in failing to provide reasons for his conclusion that the contract was not that of a business undertaking carried on by the Claimant under limb (b). This point was resisted in the Claimant’s answer provided by Ms Dolan and in her skeleton argument. She contends the point was not raised below; Mr Jew accepts that. The question then for me is whether I should allow the point to be raised. Ms Dolan says that it would require additional evidence, and Mr Jew accepts that; after all, it is implicit in the criticism he makes on behalf of his client that the Judge did not provide sufficient reasons that there are insufficient reasons here for the matter to be determined, and it would have to go back to a Tribunal.

17. In the middle of our hearing today, the Court of Appeal handed down its Judgment in Clyde & Co LLP v Bates van Winkelhof [2012] EWCA Civ 1207, in which Elias LJ, with whom Lloyd and Richard LJJ agreed, overturned the Judgment of HHJ Peter Clark, and restored a decision of the Employment Judge. Two points are relevant. One is that it deals with a worker. Having shown the Judgment to the advocates today, we have agreed that it does not help us in respect of the principal issue, which is whether or not there was an obligation for Mr Creasey to perform the work personally, but it also deals with the raising of new points, and it was the new point that was fatal to HHJ Peter Clark’s otherwise estimable Judgment. Authorities were cited for the raising of new points, relevant here. Broadly speaking, the EAT will not allow new points to be raised that were not taken below, and that will be particularly the case where there are further findings needed. Ms Dolan contends it is unfair for Mr Creasey to have to face another hearing, defend a new point and argue whether he is in a business undertaking, with UK Mail as his customer.

18. For the reasons given by Elias LJ as to the taking of new points, I will not allow this to be raised by Mr Jew at this stage. I am satisfied the point could have been taken, and there can be no criticism of the Judge for dilating no further than he did; at the most, he was simply saying there is no other point than the substitution point for him to consider under limb (b) of section 230. In order to determine what sort of business undertaking on this thesis Mr Creasey was carrying out, there would have to be careful findings. I am satisfied it was not an issue before the Judge; it should not be raised before me, and I see no reason to doubt the finding by the Judge in broad, robust terms that Mr Creasey was not carrying on a business undertaking. I have not had, nor has the Judge, full argument upon that point.

19. The second argument, therefore, is the one relevant in this appeal, which is whether or not the Judge properly construed section 230 and in particular the words “perform personally any work or services”. With exemplary clarity, Mr Jew relies upon the Judgment of Silber J and members in Premier Groundworks Ltd v Jozsa [2009] UKEAT/0475/06 to contend that where a party has an unfettered right to decline personally to perform obligations under the contract but can delegate them for any reason to someone else, he cannot be a worker. The fact that conditions are imposed upon the substitute as to suitability or qualification does not affect the question of whether there is any fetter on the right. If the party has to satisfy some condition himself, such as demonstrating that he is sick or unable to perform the work, then there is a fetter, but if it is choice, there is no fetter. That is the central proposition in this case.

The Claimant’s case

20. Ms Dolan, in equally rigorous and elegant submission contends the Judge made findings of fact and that there were indeed fetters on Mr Creasey’s right to appoint someone else. His duty personally to perform any work was not one that he could freely dispose of, for he had to pass over a number of hurdles, and they are the ones the Judge set out in paragraph 28, together with issues of insurance and so on. These are all substantial.

Discussion and conclusions

21. I will deal with the legal principles at the same time as I deal with my conclusions. I prefer the argument of Mr Jew, and I am content to adopt the astringent analysis of Silber J in Jozsa. The summary of his Judgment, prepared by the Judge himself, could not put it more clearly:

“1. The issue raised on this appeal is whether Victor Jozsa (‘the claimant’) was a ‘worker’ within the meaning of regulation 2(1) of the Working Time Regulations 1998 (‘the WTR’) in respect of his relationship with the party with whom he contracted, namely Premier Groundworks Ltd (‘the respondent’) under the terms of a written agreement dated 1 January 2006. This entails considering first whether the claimant ‘undertook to do or perform personally any work or services for another party to the contract’ and second whether that other party to the contract (namely the respondent) is a person or entity ‘whose status is not by virtue of that contract that of a client or customer of any profession or business undertaking carried on by that individual’.

2. The Employment Tribunal held that the answer on both issues was in the affirmative but the case for the respondent is that the answers on both issues should be in the negative. As already appears, we describe the parties by the roles they had in the Employment Tribunal.”

22. Indeed, I am grateful to Silber J because he gives a full analysis of the authorities that have been put before me, and he says this, which I adopt in full:

“12. Another point made by Mr Bishop [for the Claimant] is that Clause 13 is a limited and conditional one because there are two important pre‑conditions before it can be invoked. They are the requirements first of advance notification presumably to allow the respondent to decide whether or not the substitute is sufficiently qualified and experienced and second that the person delegated is as ‘capable, experienced and qualified as the [claimant] himself’.

13. In our view, those conditions do not prevent clause 13 being regarded as a right to delegate the performance of the agreement and to nullify any suggestion that the claimant is a ‘worker’. In reaching this conclusion we are bound by and we follow the decision and the reasoning of the Court of Appeal in [Tanton]. In that case, there was a contract between the parties which provided that:–

‘3.3 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.’

14. There was another provision in paragraph 13 of the schedule to the agreement, which provided that ‘in the event that the contractor provides a relief driver, the contractor must satisfy the company that such a relief driver is trained and is suitable to undertake the services’.

15. Peter Gibson LJ said in his judgment, with which Auld and Hirst LJJ agreed, that:–

’31. In these circumstances it is, in my judgment, established on the authorities that where, as here, a person who works for another is not required to perform the services personally, then as a matter of law the relationship between the worker and the person of whom he works is not that of employee and employer. [The claimant] has submitted to us that though the personal service to the [contracting party] was a highly material consideration, it was not conclusive. I am afraid that that proposition cannot stand in the light of the authorities.’

16. It is noteworthy that there is a crucial similarity between that case and the present one because in both cases the person claiming to be an employee or worker could for any reason delegate his functions to the other party being satisfied about the qualifications of that other person. Indeed in both cases there was no need for the person said to be an employee or a worker ever to do the work even if he was able to do it. […]

18. [...] The Tribunal considered that the critical factor in Tanton was that the individual of his own will and at his own expense could perform this contract by sending someone else along. That was a factor which distinguished the Tanton case from the case before Lindsay P because as she explained ‘it is important to note that Mr Tanton was entitled not to perform any services personally’.

19. In the present case, the claimant, like the claimant in the Tanton case, could of his own will and at his own expense perform his contract by sending someone else along. So the present case is distinguishable from the facts in MacFarlane [and Anor v Glasgow City Council [2001] IRLR 7] because in that case unlike the present case, first the claimants in this case ‘could not simply choose not to attend or not to work in person’ and second his substitutes would be paid directly by the entity for whom the work was performed and not by the person for whom the substitute was standing in. […]

25. In conclusion, we consider that where a party has an unfettered right for any reason not to personally perform the contractual obligations under a contract but can delegate them to someone else, he cannot be a ‘worker’ within the meaning of the WTR even though the person actually performing the contractual obligations has to meet certain conditions. 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 or her obligations (see MacFarlane and James [v Redcats (Brands) Ltd [2007] IRLR 296] (supra)).”

23. With respect to Mr Jew, his other authorities are simply illustrations of that point but do not lose any of their potency for that. The Judge, I consider, looked too narrowly at this contract and did not cast his eye upon the wide usage of the alternate formulations of “you” and “the Personnel”. Obviously, the contract is made with Mr Creasey, but at every stage where Mr Creasey is required to undertake some part of the contract he is juxtaposed to “the Personnel”. The personnel are linked to “the Services”. “The Services” obviously involve people in the Personnel, including the Claimant, who can carry out the obligations in the agreement. A person, for example, who does not have a vehicle or cannot drive cannot qualify as Personnel because they cannot deliver the Services.

24. The critical point is that there is no fetter on Mr Creasey’s right to invoke the alternative provider in the agreement and have the work done by the Personnel. That there are conditions on who that person is – that is, skill, qualifications and passing the tests the Respondent is recorded as having in paragraph 28 of the Judgment – does not mean that Mr Creasey’s right to send him or her along is fettered. Unlike the majority of the authorities to which I have been referred, there is no requirement that the Claimant be unable to perform his duties or that he is sick; the simple issue is one of choice for him. That as a matter of fact for 10 or 15 years he did himself do the work does not change the nature of the right he has to send someone else. That others did choose to do so, the 7 or so of the group of 56, does not affect that either; it simply illustrates that some people took advantage of their right to provide a substitute and most did not. The starting point, therefore, is the contract itself; the contract provides an unfettered right, as I construe it, to send someone else, provided that they have the qualifications.

25. The focus on substitution in the submissions of the advocates and in the Judgment of the Employment Judge derives from those four words: “perform personally any work”. “Personally” in the OED includes the following: “in a personal manner or capacity”, “in person”, “by himself” and “as a person in one’s personal capacity”. And so one can instantly see that where others can do it there is a dilution of the obligation personally to perform work. It is in truth a composite obligation on the Claimant to do the work or to see to it that it is done through his personnel, on pain of having the work done by a person nominated by the Respondent and being charged for it.

26. That is the solution to this case. I fully accept Ms Dolan’s argument that Mr Creasey has lost his limb (b) rights as a result of his not knowing of the term in the contract, but this is a genuine term – as the Judge found, a genuine right to appoint someone else. That he did not carefully read the contract, did not take advantage of substitution and did not notice others doing it, does not diminish the genuineness of the right, or the potency of his signature: L’Estrange v Graucob [1934] 2 KB 394 CA. So no question as arose in Autoclenz arises here as to it being a sham or the signature rule being disapplied.

27. It follows that, since I have not allowed the second point to be raised, it falls away anyway. Mr Creasey has to get over those four words in section 230 before any consideration of the Respondent’s inchoate challenge that he is a business undertaking in the nature of a client or customer.

28. In conclusion, I make the following comments. Maurice Kay LJ said in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005 said “Employment Tribunals spend a great deal of time taxonomising borderline cases in these areas”. Generally speaking, the finding of the facts is for the Judge, and only if there is an error of law or misdirection should the EAT intervene. But in this case, the starting point, and really the end point, has been the construction of the subcontractor agreement. The usage of the parties – that is, the conduct of them – is relevant, and the passages in paragraph 28 that I have cited come into that category, but they do not assist Ms Dolan, because they are simply examples of the qualifications needed for a suitable substitute. As we use the word “substitute”, as indeed this Employment Tribunal did, it implies someone who is a suitable alternative for the person under the contract. No one would have envisaged that a person could be sent along by the subcontractor in the agreement without an insured vehicle, who could not drive, who could not read and operate the scanner or who had a bad criminal record, since there is a high degree of trust.

29. Even accepting all of those, to which there has been no challenge, they are the conditions imposed upon the substitute, and they are a different matter to conditions imposed upon the right to send such a person, which is available to the Claimant at any time, for any reason or for none.

30. The appeal is allowed. There is no point in sending this back to the Judge; neither party asks me to. The determination of the single issue of construction under section 230 determines the case. Mr Creasey’s claims are all dismissed. Permission to appeal is refused [for reasons not transcribed].