Self employed or employee?
Court of Appeal decision on sham employment terms
In Autoclenz Ltd v Belcher and ors the Court of Appeal has held that a group of car valets employed under terms and conditions that professed them to be self-employed were, in reality, employees. In so doing, the Court has overturned the EAT’s decision and brought the law on sham terms in the employment context into line with the other recent Court of Appeal judgment in Firthglow Ltd (t/a Protectacoat) v Szilagyi. The case concerned a group of 20 valets who had been recruited through advertisements asking for self-employed people and engaged under agreements that described them as ‘subcontractors’. The contracts contained substitution clauses providing that the valets would be able to supply suitably qualified substitutes to carry out valeting on their behalf. The contracts also provided that no valet was under an obligation to provide his or her services on any particular occasion, and offered no guarantee of work. When the valets lodged claims seeking a declaration that they were workers or employees of A Ltd and claiming unpaid wages and holiday pay, the employment tribunal found that the substitution and obligation clauses did not reflect the reality of the relationship. It decided that the valets were fully integrated into A Ltd’s business and subject to its control. Consequently, they were employees. However, on appeal, the EAT disagreed, holding that the tribunal had not been entitled to go behind the terms of a written agreement that defined the claimants as self-employed subcontractors. It noted that the EAT’s judgment in Consistent Group v Kalwak and ors – on which the tribunal had relied to look behind the terms of the written agreement on the basis that it did not reflect the true nature of the parties’ relationship – had subsequently been overturned. Instead, the EAT’s view was that a tribunal can look behind the express terms of a contract only where both parties intend the contract to paint a false picture, following Snook v London and West Riding Investments Ltd. The claimants appealed to the Court of Appeal. Overturning the EAT’s decision, the Court of Appeal concluded that the difference between the Court of Appeal’s and the EAT’s approach in Kalwak was essentially one of form and not substance, and that the only reason for the Court of Appeal’s remission in that case was that the employment judge had given insufficient reasons for his decision. The law on sham terms had been recently set out in Firthglow Ltd (t/a Protectacoat) v Szilagyi (Brief 875). Following that case, a tribunal must consider whether or not the words of the written contract represent the true intentions or expectations of the parties, not only at the inception of the contract but at any later stage where the evidence shows that the parties have expressly or impliedly varied the agreement between them. In the instant case, the facts supported the tribunal’s original conclusion, in particular that no one seriously expected the valets to provide a substitute and that the valets were expected to turn up every day and do the work provided. Thus, the Court of Appeal concluded that there was the necessary mutuality of obligation to conclude that the claimants were workers and, furthermore, the necessary control to establish that they were employees. Further information: