EMPLOYMENT STATUS UNDER THE MICROSCOPE: LESSONS FROM THE MACLEAN CASE
A recent Employment Appeal Tribunal (EAT) decision has reinforced just how finely balanced the distinction between employee, worker, and self-employed status can be — and why accurate contractual documentation is crucial.
In this case, Partnership of East London Co-operatives Ltd v Maclean Ms Maclean, a qualified nurse working for Partnership of East London Co-Operatives Ltd (PELC), provided services as a self-employed contractor through her personal service company. When her engagement ended, she brought claims for unfair dismissal, whistleblowing detriment, and holiday pay — claims that depended on her being an employee or worker.
The employment tribunal initially found in her favour, concluding she was both an employee and a worker. However, the EAT overturned that finding.
While it agreed that the contractual relationship was between PELC and Ms Maclean personally — not her company — the EAT found there was insufficient mutuality of obligation to establish employment. PELC was not obliged to offer her shifts, and she was not obliged to accept them. Applying for shifts as and when she wished did not amount to an overarching commitment by either party.
The EAT also questioned the tribunal’s reasoning on substitution, noting that while a replacement would need to meet PELC’s vetting standards, there was a pool of approved nurses who could act as potential substitutes — a factor that may indicate genuine self-employment.
What Should Employers Take Away?
This judgment underscores the importance of ensuring contracts accurately reflect the true working relationship. Tribunals will look beyond labels to the practical reality — but clear, consistent documentation remains a critical line of defence.
Employers engaging contractors should also assess:
Whether mutual obligations exist to provide or accept work.
The realistic ability to provide a substitute.
Whether contractual restrictions align with a self-employed model.
Getting these details right can be the difference between engaging a genuine contractor and creating an unintended employee.
