ESM0526 | Guide to determining status: control over how the work is done

One element of control is the right to control how the worker carries out the work.

Where the right to control how the work is done is present it can be a strong pointer towards employment. In this context what we are talking about is the ability of the engager to control the way in which the worker performs his or her duties and requires that worker to follow instructions. The right of control may be explicitly set out in the contract or merely implied.

In the case of Market Investigations Ltd v Minister of Social Security (see ESM7040) a market research interviewer was found to be an employed earner. Great importance was attached to the control the company could exercise over the way in which the interviewer carried out her assignment. The worker had to follow detailed instructions when carrying out the work. This was a major factor in the Court’s decision that she was an employee.

In a case involving a person who ran Weight Watching groups, it was found that she was 'tied hand and foot' over the way in which she was to work; she could not be an independent contractor. The case is Narich Pty Ltd v The Commissioners of Payroll Tax: Privy Council decision number 38 of 1982). This is an Australian case but the law in that country is, for all practical purposes, the same as in the UK.

The Supreme Court in PGMOL [Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd [2024] UKSC 29] considered that control can be exercised by both positive and negative means. In that context, the consequential sanctions were known to the officials prior to carrying out an engagement and could influence the behaviour of those officials both before, during and after an engagement.

The Supreme Court found that the combination of contractual obligations imposed on referees as to their general conduct, such as the Code of Conduct, and their behaviour during a game, such as the merit table, matchday procedures, and assessment systems, gave PGMOL a sufficient framework of control to meet the RMC stage 2 test.

On this, the Supreme Court disagreed with the Court of Appeal regarding the importance and relevance of effective sanctions when considering control. The Supreme Court found that the right to impose sanctions is of some significance, and this right contributed to PGMOL’s ability to exercise control over the officials, both on and off the pitch.

This form of control is absent if the worker is free to carry out the work in whatever way he or she likes. The only check that the engager might have is that the work must be to a satisfactory standard and subject to a final quality control check. This does not give the engager the right to control how the worker does the work. All that is happening is the engager is confirming that the contract has been complied with.

The presence of control over “how” work is done is a pointer in determining the overall degree of control being exercised over the worker. Where this element of control is present, it is a strong pointer to the contract being one of employment. However, the absence of any or little control over “how” the work is done does not necessarily mean the worker will be self-employed. This is because many employees are experts in their fields with skills and specialist knowledge and are not subject to such control. For further guidance on control over an expert see ESM0528.