Arranging for substitutes

Case 11: The facts

Mr O'Brien an experienced bricklayer was hired by RJ Prentice Brickwork. He was not an employee and his contract gave him the absolute right to engage a substitute to do his work. He received no holiday pay. O'Brien was later made up to charge-hand. He argued that this meant that in practice he could no longer engage a substitute and that therefore he was a worker and entitled to holiday pay.

The ruling

The EAT ruled against O'Brien. While it accepted that the law as it stood allowed employers to escape having to pay for holidays by inserting the right to hire a substitute into the contract, in law this affected the individual's employment status. The express contract term was clear and O'Brien's attempt to argue that in reality the contract had changed on his becoming a chargehand did not overrule the express term for substitution in his contract.

* RJ Prentice Brickwork v O'Brien EAT/1086/02