Before the ET, the claimant has argued that the reality of the franchise agreement was that he had contracted as an individual driver, who had been solely responsible for the delivery and collection services which he had agreed to undertake. In particular they argued that the franchisor’s oversight in vetting drivers employed by the franchisee could “suggest a degree of control beyond that of an individual carrying on business in their own capacity”. However the franchisee could use ‘Ninety Day Drivers’ free of that oversight and the ET that that “this was not such as to amount to a fetter on the claimants’ contractual entitlement to engage a driver of their choice,”

Ellenbogen J, after reviewing the franchise agreement and the relevant case law (including Autoclenz and Pilmlico), agrees with the respondent’s submission that “Reading [the ETs] judgment in the round,.... there was, both on paper and in practice, an unfettered right of substitution" and so at [81] concludes that:

“As it is (rightly) common ground between the parties that a genuine right of substitution which is inconsistent with personal performance is inconsistent with both employee and worker status, the Tribunal was right to determine the preliminary issues which were before it in favour of the Respondent.”