ESM0537 - Guide to determining status: disproving a right of substitution

Disproving a claimed right of substitution can be difficult. Unless there is reason to doubt a claimed right of substitution it may normally be accepted at face value. If the claim later turns out to be untrue we will normally be able to rectify the matter later. Enquiries are more likely to be appropriate where other alleged terms are found to be false or a claimed right of substitution does not seem to make sense in relation to the contract. For example, an engager is unlikely to want to accept a substitute

• when engaging a person with specialist skills etc personal to them (for example, a well known actor, footballer, designer, etc)
• where a high quality job is required and a particular individual is deliberately chosen because of his/her own abilities (for example, an ‘ace’ carpenter chosen to construct a particularly difficult film set)
• where the work involves a complex task worked on a team basis and is likely to take some time to complete and where ongoing work relies on a knowledge of the whole system being worked on (for example, in some computer programming situations).

Also, if a worker is hourly paid, an engager may be slow to accept a substitute where a known, helpful and highly productive individual is engaged. For example, an engager hires a fit 22 year old man as a removal operative on a long term contract at a weekly wage, perhaps paying above the going rate for their particular experience, etc. Is it likely a substitute would be accepted who might be ‘suitable’ but perhaps not nearly as productive and useful as the originally contracted worker?

The above list is not exhaustive – and the examples are not set in stone. Each situation needs to be considered on its own merits.