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Right of Substitution Trumps Dentist`s Claim

25 August 2010 #Employment


Is he an ‘employee` or a ‘worker`? This was the first hurdle an employee had to establish before he was able to proceed with his claim for unlawful deductions in Community Dental Centres Ltd v Sultan-Darmon [2010]. 

Mr Sulton-Darmon had entered into a contract with CDC to provide dental services.  CDC supplied the premises, basic equipment and support staff.  

Mr Sulton-Darmon:-

  • Had to provide his own workwear and some tools;
  • Could decline to treat any individual;
  • Had to work set hours and was paid on the basis of work actually done;
  • Was responsible for paying his own tax and NI; and
  • Did not receive holiday pay nor sick pay.

However, the provision of the contract that came under most scrutiny was that Mr Sulton-Darmon could choose not to work and hire someone else to do his work and still fulfil his contract (i.e. an unfettered right of substitution). 

The Tribunal found that Mr Sulton-Darmon was a ‘worker`.  However, CDC appealed as the Tribunal`s decision showed a clear inconsistency. On the one hand the Tribunal had found that there was no mutuality of obligation when deciding whether Mr Sulton-Darmon was an ‘employee`, but held that there was mutuality of obligation when deciding whether he was a ‘worker`.

Whilst the EAT agreed with the Tribunal`s finding that Mr Sulton-Darmon was not an ‘employee`, it held that he did not have ‘worker` status either. 

This was because under the terms of the contract there was no obligation upon Mr Sulton-Darmon to do work as he could delegate his duties.  The EAT commented that previous cases had made it clear that "an unfettered right of a contractor to send a substitute to do his or her work shows that the individual is neither a ‘worker` nor an ‘employee`."  The claim was dismissed.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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