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  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of BCA Logistics Limited and Parker and others in which the Employment Appeal Tribunal was asked to consider whether purportedly self-employed drivers, whose contract contained a right of substitution, were in fact workers entitled to holiday pay and the national minimum wage. A genuine and unfettered right of substitution, i.e. the ability to send someone else to do the work in your place, will usually prevent an individual from being an employee or worker, because personally performing the work is a prerequisite for those statuses to apply. However, the courts and tribunals can disregard a contractual right to send a substitute to do the work if there is some reason to believe it is not genuine. The case before the Employment Appeal Tribunal involved a group claim brought by over 400 drivers engaged on a self-employed basis by a company involved in vehicle collection, inspection, delivery and transport services and activities. The drivers had signed a standard form contract which recorded their status as self-employed and contained a clause allowing them to send a substitute to do their work. A key aspect of the claim was the driver's argument that this substitution clause was not genuine. At a preliminary hearing, the Employment Tribunal agreed with the drivers and held that not only was a substitute never used, but nobody seriously expected a substitute to be used. The substitution clause was an unrealistic possibility that was not intended to be operated in practice, and it therefore did not form part of the true agreement. It did not reflect what the parties realistically expected to occur. The Tribunal went on to hold that the drivers were in fact workers, a status entitling them to holiday pay and the national minimum wage among other rights. The Employment Appeal Tribunal dismissed the employer's appeal and upheld the Tribunal's decision that the Substitution Clause was not genuine. Looking at its decision as a whole, it was clear that the Tribunal had correctly weighed up multiple factors, including the fact that no driver had used the right of substitution in over 25 years of operation. There were various practical difficulties in exercising the right of substitution. and it was unrealistic for the employer to suggest it would risk handing over high-value customer vehicles to unknown untrained substitutes. The Tribunal had also been entitled to place little weight on evidence of interactions with drivers regarding substitution, which had occurred only after the litigation had commenced. The Employment Appeal Tribunal's decision is a reminder of the principle that a Tribunal is entitled to look beyond the written terms of the contract to examine the reality of the relationship between the parties, and can disregard a contractual right of substitution where this is not a genuine unfettered right. Look out for further episodes in this series to stay up to date on all things HR and employment law related.