There are around seven million carers in the United Kingdom in 2019 – and that figure is estimated to increase by 3.4 million by 2030. That is a 60% estimated increase in just over ten years’ time. A recent case involving a live-in carer with over three years’ service explores the issue of determining employee status for non-traditional work relationships, and confirms that the right to use a substitute does not always preclude an individual from having employment status.

Historically, the law has been clear in confirming that an unfettered right to appoint a substitute is not consistent with employee status. However, Catfeild-Roberts v Phillips & Universal Aunts Limited, an Employment Appeal Tribunal judgment of this month, serves as an example of where this is not always the case.

Catfeild-Roberts v Phillips & Universal Aunts Limited concerned Ms Phillips, who worked for over three years as a live-in carer for a retired Colonel. Ms Philips was introduced to the Colonel by Universal Aunts, a provider of residential care and daily assistance both in the UK and abroad.

Ms Phillips was paid for her services directly, by way of a gross payment from the Colonel’s son, Mr J Chatfield-Roberts. She accounted for her own tax and NI contributions – as she was advised to do by Universal Aunts.  Ms Phillips carried out her duties as live-in carer for the Colonel for over three years.

After her appointment was terminated, Ms Phillips brought an Employment Tribunal claim against Mr Chatfield-Roberts, claiming that she was an employee. There was no written agreement between any of the parties – so a key point of contention was whether the fact that Ms Philips had a right to send a substitute in her place to care for the Colonel, indicated that she did not have employee status.

The EAT held that although a substitute was often called upon, Ms Phillips only exercised her right to substitute when she was unable to carry out her work – ie on her weekly day off, or during other brief periods of leave. Ms Phillips did not personally arrange the substitute – she advised Mr Chatfield-Roberts the days on which she would be unable to carry out her duties and he liaised directly with Universal Aunts, who would then supply a suitable substitute carer.

Ms Phillips was not one for holidays, she took only one period of annual leave in the three years she was caring for the Colonel. The only other leave she took was her designated day off, daily two hour breaks, and a brief period she took off whilst carrying out jury duty. She was paid her normal wage by Mr Chatfield-Roberts throughout all periods of leave. She also provided him with details of any overtime worked, for which she was then compensated.

The EAT upheld the original Employment Tribunal finding confirming that on the facts of the case, Ms Phillips was an employee.

The judge held that a live-in carer who had worked within the role for over three years, who had been paid in full for the limited annual leave that she took, who had no residence other than the premises on which she worked should be considered an employee. This finding is despite Ms Phillips having the ability to substitute when unable to work and the fact that she is paid gross and had the responsibility of paying her tax and National Insurance contributions herself.

There was no written contract for the EAT to draw upon, Ms Phillips had rarely taken leave, and the parties in question had never discussed the question of payment for leave, sickness absence.

The EAT in this case have therefore drawn upon what information was available and have considered the principles in Pimlico Plumbers Limited & Mullins v Smith [2017], (cited within the judgment), reaffirming that a right of substitution which is exercised only when the contractor is unable to carry out the work is still consistent with personal performance. The EAT held that the Employment Tribunal did not err in finding that an individual’s right to substitution is consistent with employee status and the appeal was dismissed.

This case serves as another reminder that while there are a number of factors to take into account when considering employment status, it’s important to remember that no one is determinative – and there are plenty of exceptions.