“43. Accordingly, Mr Lutz having applied to Ryanair and been told that he was successful, was told that he was to be engaged through another company, MGC...and that he would have to set up an Irish limited company (which had doubtless never occurred to him to do), through an Irish adviser picked for him by MGC [sic], when he had no connection with Ireland...He was told that he was to be processed through MGC [sic], which is an English company based in Watford (to whose offices Mr Lutz had never been). 44. There is no action taken by Mr Lutz that was not directed by Ryanair and all were non-negotiable. He wanted to be employed by Ryanair. That was what he had applied for. Throughout his time as a contracted pilot with Ryanair he pressed Ryanair to become an employed pilot.”
“The Company Representative shall perform the duties as pilot as required by the Hirer in accordance with Hirer’s Manuals and Safety Management System, as may be amended at the Hirer’s sole discretion from time to time”
“A. Where the Company Representative has been providing services under this agreement for at least 12 months, and is available to work, then the Contractor will provide a minimum of 450 flying hours per annum during the period from 1st April to 31st March, or a pro-rate of same to allow for periods of unavailability over the course of the flight year....”
“The Service Company can provide a substitute notified to the hirer four weeks in advance of the work. Such substitute shall perform the Work provided that the substitute shall have the necessary experience and qualification to perform the Work and is acceptable to the Contractor and the Hirer. Should the Service Company not provide an acceptable substitute they are obliged to carry out the work as scheduled.”
“Mr Lutz was very keen on working with Ryanair and invested a lot of time and money to be able to do so. He was not able to alter one single thing about the arrangements...It was take it or leave it.”
“74. ...Shift patterns were rostered in detail for four weeks ahead and in outline 8 weeks ahead. The shift pattern for all pilots was regular...It was possible for pilots to predict when they would be working, months in advance. Pilots were expected to work their shifts, for obvious reasons. If they wanted to change a shift they had to find someone to swap with. Then one or the other would use an intranet system called Crew Dock to request the change. Most times there would be no issue, but sometimes there might be operational reasons (these were not specified) or a potential issue with flight hours limitation (or because swapping shifts from one calendar year might interfere with flight hours recording). Shifts could only be swoped [sic] with other Ryanair pilots. These might be employed or contract pilots – that was irrelevant...”
“77. At the end of a contracted pilots [sic] five-year term [they] are usually – almost invariably – offered a new five year term. No-one is simply allowed to roll on past the five-year point. 78. In fact, very few pilots stay on as contracted pilots past the five-year mark...Captain Morais giving evidence that it was really quite unusual. I prefer the evidence of Captain Morais. He knows his membership, it was clear... 79. The reasons very few stay on as contracted pilots are various. Like Mr Lutz they seek security and a pension. They obtain other roles in the industry. It is very much a five-year process of “up or out”, in practice.”
“12. Mr Lutz was employed in the operations of Ryanair. “Employed” is often used, especially in Employment Tribunals, as shorthand for “employed under a contract of employment”
“17. To be an agency worker, the work has to be temporary. I conclude that the circumstances meet that definition (set out below). In essence it was a fixed term of five years. Mr Lutz pressed for employment. That would be permanent: he was temporary. As Mr Ford pointed out, a five-year posting is, in EU law, temporary. I reject the argument that temporary means, only, short term, such as cover for another. The word temporary stems, of course, from the Latin for time. This was a time limited appointment. That in some cases it was replaced by another time limited appointment (as occurred) does not make it cease to be a time limited appointment. And so Mr Lutz was an agency worker for MGC.”
“18. To decide that [Mr Lutz was an agency worker] it is necessary to find that he had a contract to supply his services personally (and not through Dishford Port Ltd). I find that he did have a contract to supply services personally. He could, and on occasion did, ask to change his rostered flights, but that is just to change the days on which he would work. The regulatory framework is such that the pilot named on the roster must fly the plane. When Mr Lutz asked to change shifts Ryanair could say yes, or no, and did say no sometimes. Mr Lutz most certainly could not send someone along to fly a plane he was rostered to fly. The “right to substitute another” did not exist. The documentation purporting to show otherwise is a sham, with no purpose other than to try to defeat an assertion that he was a worker. Insofar as there may have been a right of substitution, it is so narrow that it cannot be considered “unfettered”. 19. The high level of regulation in the airline industry is the reason why it had to be so fettered, but is not logical to say that the reason it is fettered means that it is not fettered: fettered it was.”
“90. It is inconceivable that Mr Lutz, when wearing his Ryanair uniform and flying a Ryanair plane filled with Ryanair passengers, and being paid to do so to earn his income was not a worker. 91. As Ryanair and MCG set up the situation, and as MCG paid Mr Lutz via a service company they set up, he was a worker for them. He was not working for his service company, for the reasons given. No one says he was a worker for Ryanair – that is not the claim. 92. I am fortified in my conclusions by careful reading of Stuart Delivery Ltd v Augustine[2021] EWCA Civ 1514 , from which I do not cite extracts. On the facts set out in this judgment, and applying the principles in the cases cited to me, this was a contract for personal service.”
“98. Much time was spent in considering the issue of substitution. My view, expressed in the hearing, is that swapping shifts through the rostering desk is not substitution at all, but a rearrangement of the day and time when personal service is required. 99. But if that is not so, it is plain that the right to substitute is not unfettered. For the Respondents it has to be an unfettered right in order that the service company is the provider and the individual excluded from worker status. First (as set out above) only another Ryanair pilot could take the shift. Second, permission had to be sought, and was refused on occasion, for operation reasons, for concerns about reaching pilot flight limits in any given time frame, or because they were in different calendar years. I do not see how the facts found in this case can lead to an outcome different to that in Pimlico Plumbers Ltd & Anor v Smith[2018] UKSC 29 ...”
“Similarly there is no limit on the reasons why Mr Lutz might want to change shifts”
“Which is what I find this to be”
“As here – Ryanair wants a pool of pilots, to undertake personal service for them”
“100. Any one of these reasons is sufficient to find, as I do, that there was no unfettered right to substitute another, and that this was a contract for personal service. As I put in the summary, the regulated environment and Ryanair’s wish to have only pilots it had approved fly its planes explains why any right to substitute was fettered. That there is very good reason for fettering a right to substitute does not mean that it is unfettered.”
“102. As to temporary work, I have taken careful account of the submissions founded on Allonby v Accrington & Rossendale College (ECJ) C-256-01, reported at[2004] ICR1328 et seq. The central point is that it matters not if there is a permanent contract with the agency, what matters is whether the assignments under it were temporary, or permanent. (A permanent contract to have a series of temporary work assignments does not convert those temporary assignments into one permanent contract.) Here, the contract with MCG was for one period of five years. There is no such divergence. The issue is whether the five years is temporary, or permanent. 103. I note also paragraph 45: Mr Lutz is in the position of Ms Allonby, who operated under the direction and responsibility of the college where she taught, very much as before she was relocated to an agency, which organised her activities for them, and the college remained liable to students for the quality of her teaching. In Mr Lutz’s case, if one substitutes comparison with an employed pilot for comparison with Ms Allonby’s past, and substitutes airline, pilot and passenger for college, lecturer and student, there is no difference of substance. The description in Ms Allonby’s case that “… the legal arrangements instituted … may also be used to evade the consequences of employment protection legislation … [and] the facts … strongly point in that direction” applies fully to Mr Lutz. 104. The limitation on teachers’ freedom to choose their timetable or the place and content of their work must be considered, and the formal classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker … if his independence is merely notional. Mr Lutz’s independence was entirely notional: 104.1. Ryanair had told him he would be a contract pilot not an employee. 104.2. They had told him when and where he would train to fly a plane they selected for him. 104.3. They told him he had to pick one of three firms of accountants. 104.4. They decided that he had to move accountants (ContractPlus to Scanlons). 104.5. Those firms told him he had to have an Irish company. They picked it for him. 104.6. MGC [sic] had the agreement with Mr Lutz signed on behalf of Dishford Port Ltd by someone of whom Mr Lutz had never heard. 104.7. They dictated the terms of the documents he signed. 104.8. Ryanair told him what his base was to be. 104.9. His duties were rostered by them, and he had to do them unless he could find someone to agree to swap with him. 104.10. If he found someone to swap with him they could and did refuse to change his shift. 104.11. He was subject to discipline if he did not attend a shift. 104.12. He was paid the amount they decided and he could not negotiate otherwise. 104.13. He had to apply for holiday. 104.14. He had to wear their uniform. There is nothing independent at all in this arrangement. Mr Lutz was plainly a worker, not a self-employed businessman.” 104.1. Ryanair had told him he would be a contract pilot not an employee. 104.2. They had told him when and where he would train to fly a plane they selected for him. 104.3. They told him he had to pick one of three firms of accountants. 104.4. They decided that he had to move accountants (ContractPlus to Scanlons). 104.5. Those firms told him he had to have an Irish company. They picked it for him. 104.6. MGC [sic] had the agreement with Mr Lutz signed on behalf of Dishford Port Ltd by someone of whom Mr Lutz had never heard. 104.7. They dictated the terms of the documents he signed. 104.8. Ryanair told him what his base was to be. 104.9. His duties were rostered by them, and he had to do them unless he could find someone to agree to swap with him. 104.10. If he found someone to swap with him they could and did refuse to change his shift. 104.11. He was subject to discipline if he did not attend a shift. 104.12. He was paid the amount they decided and he could not negotiate otherwise. 104.13. He had to apply for holiday. 104.14. He had to wear their uniform. There is nothing independent at all in this arrangement. Mr Lutz was plainly a worker, not a self-employed businessman.” 104.12. He was paid the amount they decided and he could not negotiate otherwise. 104.13. He had to apply for holiday. There is nothing independent at all in this arrangement. Mr Lutz was plainly a worker, not a self-employed businessman.”
“105. I do not find Mr Bower’s [sic] submission for Ryanair that an essence of temporary work is flexibility to reconcile working and private life. That may be one reason why work is regarded as temporary work, but that is not to mean that to be temporary work must be flexible. 106. Mr Lutz’s case also depends on the work being “temporary”
“115. Here, there was a fixed five-year term. It was not indefinite. (It also contained a three month notice period.) At the expiry of five years any contracted pilot who remained was, without exception, issued with a new five-year contract. A succession of fixed terms is not indefinite – by definition it is definite in time. It is, definitively, for five years. It does not have to be short term. It is not permanent. Therefore it is temporary work.”
“...what is required is adequacy, not perfection. An ET is not sitting an examination.”
“118. It is firmly established that, where the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, the question of whether work is performed by an individual as an employee (or a worker in an extended sense) or an independent contractor is to be regarded as a question of fact to be determinised by the first level tribunal. Absent a misdirection of law, the tribunal’s finding on this question can only be impugned if it is shown that the tribunal could not reasonably have reached the conclusion underappeal...”
“62. ...he drew the conclusion (at para 28) that, in the employment context, it is too narrow an approach to say that a court or tribunal may only disregard a written term as not part of the true agreement between the parties if the term is shown to be a ‘sham’ in the sense that the parties had a common intention that the term should not create the legal rights and obligations which it gives the appearance of creating...Rather, the court or tribunal should consider what was actually agreed between the parties, “either as set out in the written terms or, if it is alleged those terms are not accurate, what is proved to be their actual agreement at the time the contract was concluded” see para 32, again agreeing with observations of Aikens LJ in the Court of Appeal. 63. After quoting (at para 34) a further statement of Aikens LJ contrasting the circumstances in which contracts relating to work or services are often concluded with ‘those in which commercial contracts between parties of equal bargaining power are agreed’, Lord Clarke JSC ended his discussion of the law (at para 35) by saying: ‘So 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 and the true agreement will often have to be gleaned from all the circumstance of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.’” (Emphasis added.)
“69. Critical to understanding the Autoclenz case, as I see it, is that the rights asserted by the claimants were not contractual rights but were created by legislation. Thus, the task for the tribunals and courts was not, unless the legislation required it, to identify whether, under the terms of their contracts, Autoclenz had agreed that the claimants should be paid at least the national minimum wage or receive paid annual leave. It was to determine whether the claimants fell within the definition of a ‘worker’ in the relevant statutory provisions so as to qualify for these rights irrespective of what had been contractually agreed. In short, the primary question was one of statutory interpretation not contractual interpretation. 70. The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose... The purpose of protecting workers 71. The general purpose of the employment legislation invoked by the claimants in the Autoclenz case...and by the claimants in the present case, is not in doubt. It is to protect vulnerable workers from or subjected to other forms of unfair treatment...The purpose of including such individuals [limb (b) workers] within the scope of the legislation was clearly elucidated by Mr Recorder Underhill QC giving the judgment of the Employment Appeal Tribunal in Byrne Bros (Formwork) Ltd v Baird[2002] ICR 667 , para 17(4): ‘the policy behind the inclusion of limb (b)...can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu...The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-à-vis their employers; the purpose of the Regulations is to extend protection to works who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm’s length and independent position to be treated as being able to look after themselves in the relevant respects.’” (Emphasis added.)
“76.... it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a ‘worker’. To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The effect of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker. Laws such as theNational Minimum Wage Act 1998 were manifestly enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it. 77. This point can be illustrated by the facts of this case... to treat the way in which the relationships between Uber, drivers and passengers are characterised by the terms of the Services Agreement as the starting point in classifying the parties’ relationship, and as conclusive if the facts are consistent with more than one possible legal classification, would in effect be to accord Uber power to determine for itself whether or not the legislation designed to protect workers will apply to its drivers. 78. This is, as I see it, the relevance of the emphasis placed in the Autoclenz case...on the relative bargaining powers of the parties in the employment context... ..... 85. ...This does not mean that the terms of any written agreement should be ignored. The conduct of the parties and other evidence may show that the written terms were in fact understood and agreed to be a record, possibly an exclusive record, of the parties’ rights and obligations towards each other. But there is no legal presumption that a contractual document contains the whole of the parties’ agreement and no absolute rule that terms set out in a contractual document represent the parties’ true agreement just because an individual has signed it. Furthermore...any terms which purport to clarify the parties’ legal relationship or to exclude or limit statutory protections by preventing the contract from being interpreted as a contract of employment or other worker’s contract are of no effect and must be disregarded. ..... 87. In determining whether an individual is a ‘worker’, there can, as Baroness Hale DPSC said in the Bates van Winkelhof case[2014] ICR 730 , para 39, ‘be no substitute for applying the words of the statute to the facts of the individual case.’ 88. This approach is also consistent with the case law of the CJEU which, as noted at para 72 above, treats the essential feature of a contract between an employer and a worker as the existence of a hierarchical relationship...The wording of the contractual documents, while relevant, is not conclusive.” (Emphasis added.)
“ ‘crew member’ means a person employed to act as a member of the cabin crew or flight crew on board a civil aircraft by an undertaking established in the United Kingdom; ‘employer’ means an undertaking established in the United Kingdom by whom a crew member is (or where the employment has ceased, was) employed; ‘employment’ in relation to a crew member, means employment under his contact and ‘employed’ shall be constructed accordingly; ‘flight crew’ means a person employed to act as a pilot, flight navigator, flight engineer of flight radiotelephony operator on board a civil aircraft”
“Clause 1 1. The Agreement applies to the working time of mobile staff in civil aviation. Clause 2 1. ‘Working time’ means any period during which the worker is working at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice. 2. ‘Mobile staff in civil aviation’ means crew members on board a civil aircraft, employed by an undertaking established in a Member State. Clause 3 1. Mobile staff in civil aviation are entitled to paid annual leave of at least four weeks, in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.”
“Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”
“72. ...and a similar explanation for the concept of a worker has been given in EU law. Although there is no single definition of the term “worker”, which appears in a number of different contexts in the Treaties and EU legislation, there has been a degree of convergence in the approach adopted. In Allonby v Accrington and RossendaleCollege (Case C-256/01 )[2004] ICR1328 ; [2004] ECRI-873 the European Court of Justice held, at para 67, that in the Treaty provision which guarantees male and female workers equal pay for equal work (at that time, article 141 of the EC Treaty): ‘there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration’. The court added (at para 68) that the authors of the Treaty clearly did not intend that the term “worker” should include “independent providers of services who are not in a relationship of subordination with the person who receives the services”
“A college of further education terminates the employment of its part-time, mostly female, lecturers. It subsequently buys in their services again through the intermediary of an agency with which those lectures are registered as self-employed persons. Through these arrangements the college seeks to achieve savings in operating costs. For the lecturers concerned the arrangements entail a diminution in emoluments in relation to those which they received under the original employment relationship with the college. In that context the following questions have arisen: whether the female lecturers may compare themselves, in regard to their remuneration, including the conditions governing access to a pension scheme, with a male lecturer remaining in the service of the college, and whether the lecturers concerned may demand admission to the pension scheme where conditions restricting access to that scheme to lecturers who are employees of the college results in an objectively unjustified difference in treatment.”
“71. The formal classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article.” (Emphasis added.)
“79. ... in the absence of any objective justification, the requirement, imposed by state legislation, of being employed under a contract of employment as a precondition for membership of a pension scheme is not applicable where it is shown that, among teachers who are workers within the meaning of article 141(1) EC and fulfil all the other conditions for membership, a much lower percentage of women than of men is able to fulfil that condition. The formal classification of a self-employed person under national law does not change the fact that a person must be classified as a worker within the meaning of that article if his independence is merely notional.” (Emphasis added.)
“any other contract to perform work and services personally for the agency”
“This Directive applies to workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction.”
“The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognising temporary work agencies as employers, whilst taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively in the creation of jobs and to the development of flexible forms of working.”
“(b) ‘temporary work agency’ means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction; (c) ‘temporary agency worker’ means a worker with a contract of employment or an employment relationship with a temporary work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction; (d) ‘user undertaking’ means any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily; (e) ‘assignment’ means the period during which the temporary agency worker is placed at the user undertaking to work temporarily under its supervision and direction;”
“Member States shall not exclude from the scope of this Directive workers, contracts of employment or employment relationships solely because they relate to part-time workers, fixed-term contract workers or persons with a contract of employment or employment relationship with a temporary work agency.”
“Employment contracts of an indefinite duration are the general form of employment relationship. In the case of workers who have a permanent contract with their temporary work agency, and in view of the special protection such a contract offers, provision should be made to permit exemptions from the rules applicable to the user undertaking.”
“32. Mirror Group Newspapers Ltd v Gunning[1986] ICR 145 concerned the right to distribute that company’s Sunday newspaper around Sheffield. Mrs Gunning’s father had held the distribution but, on his retirement, the company refused to renew it in her favour. She alleged that its refusal was discriminatory and to that end she needed to establish that her father’s contract had required personal performance of it on his part. In allowing the company’s appeal the Court of Appeal held at pp 151 and 156, that Mrs Gunning had failed to show that the dominant purpose of her father’s contract had been that he should perform it personally; instead the purpose had been that the company’s Sunday newspapers should be efficiently distributed around Sheffield. But in James v Redcats (Brands) Ltd[2007] ICR 1006 , paras 65-67, Elias J, as President of the Employment Appeal Tribunal convincingly suggested that an inquiry into the dominant purpose of a contract had its difficulties; that, even when a company was insistent on personal performance, its dominant purpose in entering into the contract was probably to advance its business; and that the better search might be for the dominant feature of the contract. In the Hashwani case...Lord Clarke of Stone-cum-Ebony JSC, at paras 37-39, referred to the suggestions of Elias J in the James case with approval but stressed that, although it might be relevant to identify the dominant feature of a contract, it could not be the sole test. The sole test is, of course, the obligation of personal performance; any other so-called sole test would be an inappropriate usurpation of the sole test. But there are cases, of which the present case is one, in which it is helpful to assess the significance of Mr Smtih’s right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part. ..... 34. The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitution had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker – unless the status of Pimlico by virtue of the contract was that of a client or customer of his.” (Emphasis added by underlining.)
“...I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.”
“40. ...First, the actual issue for a tribunal is whether a claimant is under an obligation personally to perform the work or provide the services. Secondly, Sir Terence Etherton ME was seeking to summarise the principles to be drawn from existing case law; he was not seeking to establish a rigid classification or lay down strict rules as to what did or did not amount to personal performance nor when a right of substitution did or did not negate the existence of an obligation to do work personally. Thirdly, on analysis of para 84, there are only two principles summarised. The first is that if the claimant has what is described as an unfettered right to substitute another person to do the work or perform the services that is inconsistent with an undertaking to do so personally. The second principle is that a conditional right ‘may or may not be inconsistent’ with personal performance depending on the precise contractual arrangements and, in particular ‘the nature and degree of any fetter on a right of substitution’. The third to fifth points made in para 84 are provided, expressly, ‘by way of example’ of situations where a contractual right on the part of the claimant may be one indicator that the obligation is or is not one to do the work or perform the services personally... 41. Against that background, it would be wrong to seek to treat those five points as setting out definitive categories of what situations, do or do not, involvea right for a claimant to substitute another person to carry out the work sufficient to displace any contractual obligation to perform the work personally...” (Emphasis added.)
“...That is not to say that there is necessarily a ‘rule’ that the right, or ability, to appoint substitutes only from the respondent’s pool of operatives is always inconsistent with an obligation of personal performance. It is simply to recognise that the conclusion reached by the employment tribunal here is one that, in broadly similar circumstances, the courts have accepted is a conclusion that employment tribunals can reasonably reach.”
“41. ...The word ‘temporarily’ can mean something that is not permanent or it can mean something that is short-term, fleeting etc. The two are not necessarily the same: for example, a contract of employment may be of a fixed duration of many months or perhaps even years. It can properly be regarded as temporary because it is not permanent but it would not ordinarily beregarded as short term. I should add that by permanent I do not mean a contract that lasts forever, since every contract of employment is terminable upon proper notice being given. What is meant is that it is indefinite, in other words open-ended in duration, whereas a temporary contact will be terminable upon some other condition being satisfied, for example the expiry of a fixed period or the completion of a specific project. ..... 50. In my judgment the concept of ‘temporary’ in the 2010 Regulations and Directive 2008/104 means not permanent.” (Emphasis added.)
“25. On the whole, I agree with the Respondent that the terms of the contract will not necessarily be determinative of agency worker status. The focus under reg 3(1)(a) is on the purpose and nature of the work for which the worker is supplied: is it temporary or permanent? The underlying contract – as will necessarily have been found to exist for the purposes of reg 3(1)(b) – may state that there is no obligation to provide or undertake work, and may allow that the worker can be moved from site to site but if, in fact, that individual is supplied to carry out work on an indefinite basis (the continuing cleaning jobs in issue in Moran, for example), it would not be temporary in nature. Although in Murray v Foyle Meats Ltd [[1999] IRLR 562 ,][2000] 1 AC 51 , the House of Lords was concerned with the statutory definition of redundancy (“work of a particular kind”, sees 139 of the Employment Rights Act 1996 ), I agree that the same kind of factual analysis is required for present purposes. That said, the terms of the contract may not be irrelevant: the contract provides evidence as to what the parties understood and intended in terms of the work that the worker might carry out, and the ET is entitled to test the evidence given as to what occurred in practice against the relevant documentary evidence, which would include the contract. 26. In the present case, the ET was entitled to have regard to the complete flexibility afforded to the Respondent under the zero-hour contracts it offered to its security guards. It was relevant, in particular, that the contract gave it the flexibility to move individuals from job to job. Of course, if that power was never exercised, its relevance might be diminished, but the ET was entitled to have regard to the fact that it had been utilised in the Claimant's case. More particularly, however, the ET accepted the Claimant's evidence that, as a matter of practice, he worked as “cover”: this was not, on the ET's findings, a case where the Claimant was assigned on an indefinite basis to carry out particular ongoing work; he was, rather, used as a ‘cover security guard’ (as the ET described his position). 27. That finding was, in my judgment, fatal to the Respondent's case. The ET found that the Claimant was being supplied to work to provide specific cover for Mitie, as and when required, and would thus be temporarily working for the fixed duration of the absence being covered. That finding by the ET was, moreover, not solely derived from the Claimant's evidence but was also corroborated by Mitie's characterisation of the services supplied by the Respondent as being on a “required only basis” and usually “connected to additional cover that our customer base has requested”
“44. ...Regulation 3(1)(a)...requires the tribunal...to make a finding of fact about the basis on which the worker is supplied to work for the hirer, and then to decide whether the supply to work on that factual basis amounts to a supply to work temporarily, applying the guidance in the authorities. 45. The natural meaning of the words of regulation 3(1)(a) is that it directs attention to the basis on which the worker is actually placed, designated, directed or sent to go and do work for a hirer, on one or more specific occasions. In common parlance, it refers to the basis on which the worker is to work pursuant to a particular assignment or engagement on a particular occasion. That is the natural meaning of ‘supplied’ and particularly of being ‘supplied...to work temporarily’ (my italics) for and under the supervision of the hirer. 46. The focus of the Tribunal's enquiry should therefore be on the basis on which the worker is supplied to work, on each such occasion. In particular, it should ascertain, applying the guidance in Moran..., whether that supply is made on the basis that, having embarked on the assignment, the worker will continue to work for the hirer indefinitely (whether full or part-time), or on the basis that the work will cease at the end of a fixed period, on the completion of a particular task, or on the occurrence of some other event. If it is the latter, it may be followed by another supply to work for the same hirer temporarily, and then another, and another.” (Emphasis added.)
“[w]here, or how, do the terms of the contract between the agency and the worker fit into this exercise?”, noting that this “forms part of the evidential and factual matrix upon which the tribunal may draw” (paragraph 48). He elaborated on this point as follows: “50. Against that background, the communication or documentation between the agency and the worker, issued or created when the relationship is formed, should, ordinarily, be considered by the tribunal as they may well cast significant evidential light on the basis on which the subsequent supply or supplies are made; but they will not necessarily or automatically do so, nor be determinative in that regard. 51. First, to repeat, the issue for the tribunal is not whether the overarching relationship between the agency and the worker is temporary or permanent. Terms or provisions, which go to that question, will therefore not, as such, provide the answer to the question with which the tribunal is concerned. Secondly, what light the initial documentation casts on the question with which the tribunal is concerned...will be fact sensitive, and vary from cases to case. 52. In some cases the documentation created when the relationship is first formed will contain all the particulars of the supply or supplies which are contemplated, including sufficient terms to enable the tribunal to identify, from that documentation alone, whether that supply or supplies will, if carried out accordingly, be to work temporarily or not. In other cases, however, the terms of that documentation will provide the framework or umbrella under which a supply or supplies are to be made, but with the details of each supply to be made...being left to be determined in future communications. 54. ...Further, even if, in the given case, the initial documentation indicates that an assignment or assignments, of a particular type was intended or contemplated, it is always possible that the parties may later agree to do something different. Ultimately, the question for the tribunal is what was, in fact, the basis on which the given supply or supplies were made; and the contractual documentation and communications between the agency and worker...should all be considered for the evidential contribution that they make to its overall determination of that factual question. ..... 58. Further, I suspect that, in most cases, the parties will start as they mean to go on. There will either be a single supply, whether to work temporarily or not, or a number of supplies, all to work temporarily.”
“But if that is not so, it is plain that the right to substitute is not unfettered”
“...it is plain that the right to substitute is not unfettered. For the Respondents it has to be an unfettered right in order that...the individual [is] excluded from worker status”
“would depend on operational requirements and ensuring that the Flight Time Limitations...are not breached”; and Ms Crawford has said at paragraph 14 of her statement that the rostering department would advise if any swap “would impact operational efficiency or breach FTLs”
“Insofar as there may have been a right of substitution, it is so narrow that it cannot be considered ‘unfettered’”
“Any one of these reasons is sufficient to find, as I do, that there was no unfettered right to substitute another...”
“the fact that elements of the agreement between the parties may result from regulatory requirements does not prevent them from being taken into account in considering whether there is an unfettered right of substitution”
“At the expiry of five years any contracted pilot who remained was, without exception, issued with a new five-year contract”