Guide to determining status: Personal Service
An essential element of an employment is that the worker provides personal service. If the worker undertakes to perform a task and is free to hire someone else to do it or to give substantial help, it is unlikely that the worker is an employee. This is a very important factor to take into account in any status case.
It is the right to provide a substitute that is important, not whether that right is exercised. Make sure that the worker has a real choice over who does the work and that the substitute is answerable to and paid by the worker. The fact that an engager can limit the choice of substitute to a suitable person does not necessarily mean that there is no real right. However, if the engager has an unlimited right to veto substitutes then this may mean that the reality is the worker has to provide the services personally and the right of substitution is not genuine. You will need to consider such cases critically.
The information you will need to check whether there is a genuine right to use a substitute is likely to include:
- Is the right to provide a substitute included in the original written contract or in a subsequent variation to that contract?
- If it is alleged that the right arises out of a verbal agreement, when was the right established? Is there any evidence to support that agreement?
- If it is alleged that the right is an implied term of the contract, what evidence is there to support that view?
- In what circumstances can the right be used?
- Who decides when to engage a substitute?
- What restrictions does the employer place on their use?
- Who recruits them?
- Who is legally obliged to pay them?
- Who is responsible for their work?
- Has a substitute or helper ever been used? If so, how often and in what circumstances? Remember that the fact that a right is not exercised does not mean that it does not exist.It is important to bear in mind that an obligation on the worker to provide a personal service, or a condition that the worker cannot use a substitute, does not necessarily mean that that person is an employee.