Express and Echo Publications Ltd v Tanton
A person who is not required to perform work personally, because he has an unfettered right to send a substitute, cannot be an employee.
Facts
Mr Tanton worked as a delivery driver for a newspaper publisher. His written contract provided that, if he was unable or unwilling to perform the services personally, he must arrange for another suitable person to do so at his own expense. In practice he did most of the work himself, but on occasion he engaged a substitute. He claimed that he was an employee entitled to a written statement of terms.
Legal principle
The Court of Appeal held that he was not an employee. Peter Gibson LJ said that it was established that a contract of employment requires the employee to perform the work personally, and that where a person is not required to do so, the contract cannot be a contract of employment. The clause allowing Mr Tanton to send a substitute was inconsistent with a contract of employment. The decision was later qualified by Autoclenz v Belcher, which held that the court can disregard substitution clauses that do not reflect the true agreement between the parties.
Related cases on employment status
- Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157
- Barclays Bank plc v Various Claimants [2020] UKSC 13, [2020] AC 973
- Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1 WLR 2047
- Carmichael v National Power plc [1999] 1 WLR 2042
- Independent Workers' Union of Great Britain v Central Arbitration Committee [2023] UKSC 43
- James v Greenwich London Borough Council [2008] EWCA Civ 35, [2008] ICR 545
- James v Redcats (Brands) Ltd [2007] ICR 1006
- Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
