ESM0528 | Guide to determining status: control over experts

Where the right to control how the work is done is present it can be a strong pointer towards employment. However, control over how a job is done can only be exercised where there is scope for it.

The Supreme Court in PGMOL 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.

Where it is not practical or appropriate for an engager to step in during the performance of a service it does not negate the existence of a sufficient right of engager control. The Supreme Court in PGMOL found control can be exercised by both positive and negative means. The consequential sanctions for actions which are known to workers prior to carrying out an engagement could influence the behaviour of those workers both before, during and after an engagement

Many workers are professionals or skilled individuals where control over how they work is not appropriate and they do not work under the direct supervision of their engager. Examples of such jobs cited by the courts include the master of a ship, an engine driver, a head chef and a consulting engineer.

Demonstrating that a ‘narrow compass’ to control what a worker does, will not prevent control from existing for skilled workers who are often hired to perform specialist services. [Kickabout Productions Ltd v The Commissioners for Her Majesty’s Revenue and Customs [2022] EWCA Civ 502 para 92.]

In the case of Morren v Swinton and Pendlebury Borough Council (see ESM7025), relating to a civil engineer who worked for the Borough Council, it was said

Clearly superintendence and control cannot be the decisive test when one is dealing with a professional man or a man of some skill and experience. Instances of that have been given in the form of a master of a ship, an engine driver or a professional architect, or as in this case, a consulting engineer. In such cases there can be no question of the employer telling him how to do work; therefore the absence of control and direction in that sense can be of little, if any, use as a test.'

This applies also to workers who do not have professional qualifications, for example, a skilled carpenter or plasterer will not need to be told how to do his job. It is reinforced in the casual worker field by the case of Lee Ting Sang v Chung Chi- Keung (see ESM7140) where the judgement of the Privy Council (finding Lee Ting Sang to have been an employee) included the following remarks:

It is true that he was not supervised in his work, but this is not surprising, he was a skilled man and had been told the beams upon which he was to work and the depth to which they were to be cut and his work was measured to see that he achieved that result. There was no question of his being called upon to exercise any skill or judgement as to which beams required chipping or as to the depths that they were to be cut. He was simply told what to do and left to get on with it as, for example, would a skilled turner on a lathe who was required to cut a piece of metal to certain dimensions.'