Driver was not an employee
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The Court of Appeal has ruled that a contract which allowed ser vices to be carried out by a person other than the contractor was a contract for services— not a contract of service.
The court allowed an appeal by Express and Echo Publications. This overturned a decision by the Employment Appeals Tribunal and an Exeter Industrial Tribunal that driver Ernest Tanton was an employee of the company.
cord Justice Peter Gibson
said that Tanton had been an employee of the company before being made redundant in 1995. He had then been taken on as a driver under an "agreement for services", one clause of which Stated: "In the event that the contractor is unable or unwilling to perform the services personally, he shall arrange at his own expense entirely for another suitable person to perform the services."
It was the common intention of the parties that Tanton should be a self-employed con
tractor, said Gibson. Matters such as the absence of holiday and sickness pay, which the industrial tribunal chairman had found to be pointers to a contract of service, were in no way inconsistent with a contract for services.
However, the clause that did not require Tanton to perform any services personally was wholly inconsistent with the contract being a contract of service. The only conclusion that could properly be reached was that the contract was one for services.