How should you manage self-employed contractors without drifting into worker status?
If you hire casual staff – drivers, delivery couriers, hospitality workers – you might be relying on a substitution clause in their contracts to argue they are not workers.
They can send someone else, the clause says. So, they are not personally obliged. So they are not workers.
But that only works if the substitution right is real. As the EAT recently reminded us, if a clause exists only on paper, it will not stop a worker status claim.
What happened?
BCA Logistics (BCA) engaged hundreds of drivers to inspect, collect and deliver vehicles. The drivers were labelled as self-employed and signed contracts giving them the right to appoint a substitute, as long as the substitute had the right licence and insurance.
The catch? No driver had ever used a substitute. Not once. In 25 years.
When the drivers brought claims for holiday pay and minimum wage, the tribunal looked beyond the contract and focused on how things worked in practice.
What did the court decide and why?
The tribunal found that the substitution clause was not genuine. It gave seven reasons, including:
- No history of substitution – ever.
- No process for training or onboarding substitutes.
- Essential tools (identification badges, trade plates) were not transferable.
- Customers expected trained, vetted professionals.
- Substitutes could not realistically meet those standards.
The substitution clause was a fiction. Nobody seriously expected it to be used.
BCA appealed, arguing that drivers had recently made substitution enquiries and that the tribunal had misapplied the law. The EAT was not convinced. It backed the tribunal and described its decision as ‘not only rational but … more or less inevitable’.
What should you do?
Look at practice, not just paper
A substitution clause must reflect reality. If it is never used and clearly never meant to be, it will not help you.
Make it work operationally
Want a genuine right to substitute? Build a process: insurance checks, onboarding, customer approvals, access to tools and systems.
Do not copy-paste from other sectors
Deliveroo riders can and do send substitutes. But would a hotel manager accept an unknown person turning up to run a bar shift? If not, substitution is not realistic.
Hospitality HR: take note
This case matters for casual event staff, bar teams and zero-hours workers. If managers would not trust a substitute to turn up and work, then the clause is likely worthless.
Test the reality
Ask line managers:
- Can people turn down work without consequence?
- Could they really send someone else?
- Are you treating them like contractors or staff?
Five red flags your substitution clause is not genuine:
- No one has ever used it – not even once.
- There is no process for vetting, training or onboarding substitutes.
- Essential tools or identification badges cannot be shared or reassigned.
- Managers would not accept a stranger turning up to do the job.
- You have never planned how substitution would actually work.
Source: BCA Logistics Ltd v Brian Parker and Others: [2025] EAT 94 – GOV.UK
