In the case of BCA Logistics Ltd v Parker & Ors, the Employment Tribunal and the Employment Appeal Tribunal both held that drivers in a company with no legitimate right of substitution were not self-employed but classed as workers. In this case, both the Employment Tribunal and the Employment Appeal Tribunal agreed that the substitution clause in the drivers’ contracts was not genuine.
BCA Logistics Limited had 400 drivers on so-called self-employed contracts, which contained a clause allowing a driver to provide a substitute to carry out work in their absence. The Employment Tribunal had to decide whether the drivers were workers for the purposes of the National Minimum Wage. The drivers challenged the substitution clause, arguing that it was not genuine. The Tribunal found in the drivers’ favour. The clause had never been used by the company, nor was it expected to be used by the drivers. The Tribunal concluded that the clause was never intended to be used in practice and was therefore futile. BCA Logistics Limited appealed the decision.
The Employment Appeal Tribunal upheld the original ruling.
No driver had applied to use the substitution clause in over 25 years. The company had not provided drivers with any training or procedures on how to use the clause. There were no processes for managing a substitute if the clause had been invoked, and there was no evidence of substitute training. All drivers were required to complete a four-day training course, making it unrealistic to expect an untrained substitute to perform all duties. Furthermore, the company’s high-value customers would not have accepted untrained substitutes.
Employers should now review their contracts to ensure that substitution clauses are genuine. Review practices and procedures, ensure substitutes receive appropriate training, and draft such clauses with care.
If you need any further advice or help, please contact the Quest HR Advice Line on 01455 852028.
