ESM0517 | Guide to determining status: relative importance of control

Until the 1960s the courts had taken the view that the ability of an engager to control a worker was fundamental to determining status. If the engager had the right to exert control over the worker then there was likely to be employment. However, changes in employment conditions meant that this rigid approach was no longer appropriate. The idea that the control test was conclusive dated back to the days of highly structured working environments and traditional master/servant relationships. A more flexible approach to employment and a work force with much greater skills and autonomy meant that the control test, although important, could no longer be relied upon to determine status on its own. However, as control is a necessary condition of a contract of employment there must be a sufficient degree of control present to show the right exists.

One of the leading cases on the subject is that of Market Investigations Ltd v The Minister of Social Security (see ESM7040). This case concerned the status of a market researcher and in his judgement Cooke J said

’…. nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor.’

Further judicial comment on the relative importance of control can be found in the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (see ESM7030). The case concerned the status of the owner-driver of a concrete mixing lorry who wore the company uniform and had to comply with company rules. Despite the extensive control that the company had over the worker, he was held to be self-employed. In his judgement MacKenna J said

’An obligation to do work subject to the other party’s control is a necessary though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge’s task is to classify the contract ……. He may, in performing it, take into account other matters besides control.’