P entered a ‘subcontract’ agreement with D to work on a 6-month project. He was paid weekly, supplied none of his own tools, with tax being deducted. There was a clause allowing him ‘to employ his own operatives and also the supply of sufficient labour to maintain the rate of progress the company might stipulate.’ CA held that he was a worker for purposes of working time regs (see above).
Pill LJ: Policy considerations and the ‘actual facts’ do NOT determine whether a person comes within the definition of worker: This is simply a matter of statutory construction. The fact that P actually did the work personally does not mean that there was a contractual obligation to do so (it simply provides evidence sometimes). Here there was an obligation on P to do the work personally: The wide substitution clause was simply there because the contract was standard-term and used for subcontracting businesses, as well as individuals like P.
Holman J: He criticised the EAT (lower court) for looking at what actually happened rather than what the contract said. He maintained that considering what happened in fact was ‘irrelevant’ and ‘inadmissible’.