ESM7210 - Case Law: Express and Echo Publications Ltd v Tanton

[1999] IRLR 367

Point at issue

Whether a newspaper delivery driver was engaged under a contract of service or a contract for services.

Facts

This case involved a newspaper delivery driver engaged to pick up newspapers and deliver them to various places in Devon

• on a run fixed by the engager
• in a vehicle provided by the engager, and
• wearing a uniform provided by the engager.

These were all factors pointing to a contract of service.

Payment was made for the round – not by the hour/day/week.

It was found as a fact 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.”

In practice, the worker occasionally provided a substitute to carry out the work – including one six month period when he was ill.

Decision

The Industrial Tribunal originally hearing the appeal found the worker to be an employee and this finding was upheld by the EAT. However, in March 1999 the Court of Appeal overturned the decision and held that the worker was self- employed.

Commentary

The Industrial Tribunal had found as a fact that the worker did not have to provide his services personally and that this was inconsistent with a contract of service. Lord Justice Peter Gibson said

“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 his services personally, then as a matter of law the relationship between the worker and the person for whom he works is not that of employee and employer. [The worker] has submitted to us that, though the personal service to the appellant was a highly material consideration, it was not conclusive. I am afraid that proposition cannot stand in the light of the authorities.”

In another clause of the unsigned agreement it was stated 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.”

The finding as fact that Mr Tanton had to provide someone else if he was unable orunwilling to provide the services personally meant that, from day 1, he never had to perform the services himself. The company only had a limited right of veto over any substitute.

Consequently, where the wording of a contract is more restrictive e.g. a more extensive right of veto or the worker can only send a substitute if he/she is unable to work, the courts may find that there was a requirement for personal service. The finding of an Employment Tribunal in the later case of MacFarlane v Glasgow City Council supports this view (see ESM7220).

When considering a substitution clause, it is important to bear in mind the reality of the legal obligations. Lord Justice Peter Gibson said

“Of course, it is important that the Industrial Tribunal should be alert in this area of the law to look at the reality of any obligations. If the obligation is a sham it will want to say so.”