Employment law

Workers' rights

Byrne Brothers (Formwork) Ltd v Baird & others (2002) IRLR 96The Employment Appeal Tribunal (EAT) up held a tribunal's ruling that 'labour-only subcontractors' in the building industry were 'workers' protected by the Working Time Regulations 1998.

The individuals concerned undertook personally to perform work or services for the company, even though the contract provided that, in certain circumstances, those services could be provided by someone other than the subcontractor himself.

The EAT noted the Court of Appeal's decision in Express & Echo Publications Ltd v Tanton [1999] IRLR 367, where a contractual right to appoint a substitute was inconsistent with the existence of a contract of employment.

But it has long been established that a 'limited or occasional power of delegation' may not be inconsistent with the contract of service.

The EAT noted that labour-only subcontractors 'have long been regarded as being near the border between employment and self-employment'.

The fact that, in certain circumstances, a substitute can be provided does not necessarily mean that the contract cannot be regarded as a contract to supply personal services.

It is a question of the interpretation of the precise terms of each contract.

By Martin Edwards, Mace & Jones, Liverpool